United States District Court, C.D. Illinois, Peoria Division
THE AUTO CLUB GROUP, as subrogee of Gregory and Evelyn Jenkins, Plaintiff,
DOUG MILLER d/b/a DOUG MILLER CONTRACTING, AARON'S CONSTRUCTION OF ILLINOIS, I. N.C., and VIC CONSTRUCTION & ROOFING, Defendants.
BILLY McDADE United States Senior District Judge
matter is before the Court upon the “Plaintiff's
Request For Clerk's Entry Of Default Judgment Against
Defendant Vic Construction & Roofing Inc.” (Doc.
18) in which the Plaintiff, The Auto Club Group, asks the
Court to enter an order of default judgment against Vic
Construction & Roofing Inc. pursuant to Federal Rule of
Civil Procedure 55(b) in the amount of $109, 336.12, plus
interest, delay damages, and for other such relief as the
Court deems just and equitable. For the reasons stated below,
the motion is DENIED at this time.
case was brought by The Auto Club Group (“Auto
Club”) to recover money it paid to its insured to cover
a loss caused by the negligence of three separate Defendants:
Doug Miller d/b/a Doug Miller Contracting
(“Miller”), Aaron's Construction of Illinois,
Inc. (“Aaron's”), and Vic Construction &
Roofing Inc. (“Vic”). The Jenkins had a property
insurance policy with Auto Club. At some point, the Jenkins
contracted with Miller to install a new roof on their home.
Miller retained Aaron's to perform portions of the
roofing project. Aaron's, in turn, retained Vic's to
perform portions of the roofing project. On or about August
26, 2016, Vic was in the process of removing shingles over a
large area of the roof when a rain storm dropped over two
inches of rain on the subject premises. No one secured the
roof so as to prevent water intrusion into the subject
premises. The rain damaged the Jenkins' home and caused
expenses in the amount of $109, 336.12, which were paid by
Club brought this action as subrogee of the Jenkins alleging
negligence against all three defendants, breach of implied
warranty against all three defendants, breach of contract
against Miller only, and three counts entitled “Res
Ipsa Loquitor” against all three defendants.
Complaint (Doc. 1) was filed on June 12, 2017. An affidavit
of service was filed on July 10, 2017 in which a Will County
Sheriff averred that he served Defendant Vic by leaving a
copy of the Summons and Complaint with Victor Lopez on June
29, 2016. Victor Lopez is the registered agent of Defendant
Vic. Despite said service, Defendant Vic has not appeared or
filed an answer to the Complaint. On November 21, 2017, the
Clerk entered default against Vic. Now, Auto Club moves for
default judgment against Vic, despite that the civil action
is pending against the other two remaining defendants.
Rule of Civil Procedure 55(b) provides in relevant part:
(1) By the Clerk. If the plaintiff's claim is
for a sum certain or a sum that can be made certain by
computation, the clerk--on the plaintiff's request, with
an affidavit showing the amount due--must enter judgment for
that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor an
(2) By the Court. In all other cases, the party must
apply to the court for a default judgment.
case, Plaintiff's submission is labelled
“Plaintiff's Request For Clerk's Entry Of
Default Judgment Against Defendant Vic Construction &
Roofing Inc.” (Doc. 18) but in the actual document,
Plaintiff requests the Court to enter an order. Since the
Plaintiff is requesting the Court for an order within the
substance of the motion, the Court will treat this motion as
if it were made under Rule 55(b)(2).
judgment establishes, “as a matter of law, that
defendants are liable to plaintiff on each cause of
action.” e360 Insight v. Spamhaus Project, 500
F.3d 594, 602 (7th Cir. 2007). The well-pleaded facts of the
complaint relating to liability are taken as true upon
default. Dundee Cement Co. v. Howard Pipe & Concrete
Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983).
Dundee further instructs that “where liability
is joint and several, the entry of default judgment against
fewer than all defendants in an action is proper, ”
however “a damages hearing may not be held until the
liability of each defendant has been resolved.”
Id. at 1324.
stage of the litigation, the Court does not know with
certainty the nature of the potential liability among the
three defendants. Vic is but one of three defendants. The
Complaint alleges at various places that each of the three
defendants “had exclusive care and control of the roof
of the subject premises at the time of the rain
storms.” (Doc. 1 at ¶¶ 58, 64 and 70). Thus,
there seems to be a potential for an inconsistent judgment to
be entered in this action.
upon the sparse record before it the Court finds that it is
not appropriate to enter default judgment at this time
against Vic. Plaintiff is not foreclosed from renewing its
motion, but when it does, it must make clear to the Court
that there is no danger of entering inconsistent
adjudications as to the liability of Vic vis-à-vis the
potential liability of the remaining defendants. See In
re Uranium Antitrust Litigation, 617 F.2d 1248 (7th Cir.
reasons stated above, “Plaintiff's Request For
Clerk's Entry Of Default Judgment Against Defendant Vic