Kerker v. BMDC Construction Limited

Background

The Clerk of Court entered certificates of default against BMDC Construction Limited, BMDC Construction I LLC, and Ben Mullen, whom the order calls the “Defaulting Defendants.” The District Judge then entered an order of default against them and referred the action to Judge Moses to conduct an inquest and issue a report and recommendation concerning Justin Kerker’s damages.

Requirements for Plaintiff’s Submission

The order requires Kerker to file proposed findings of fact and conclusions of law by November 21, 2022. The submission must identify the exact dollar amount of damages or other monetary relief sought from each Defaulting Defendant and the precise terms of any requested nonmonetary relief.

If Kerker seeks actual damages, rather than statutory or nominal damages, the proposed findings must be supported by declarations or affidavits and admissible documentary evidence. Each proposed factual finding must cite the supporting declaration paragraph or document page. The submission must explain how the proposed damages figure was calculated and connect the requested damages to the legal claims against each Defaulting Defendant.

The proposed legal conclusions must address whether the court has personal jurisdiction over each Defaulting Defendant and subject-matter jurisdiction over the action. The order states that inadequate proof of service could result in denial of relief as to a particular Defaulting Defendant. The proposed legal conclusions must also show that the complaint’s well-pleaded allegations, taken as true after default, establish each Defaulting Defendant’s liability for each asserted cause of action.

Any request for attorney’s fees must include authenticated, contemporaneous time records identifying the date of service, hours worked, hourly rate when applicable, and nature of the work. Kerker must also provide admissible evidence about each attorney or timekeeper’s identity, background, and qualifications, along with documentation of costs and expenses. The order permits Kerker to submit a legal memorandum instead of separate conclusions of law.

Service, Opposition, and Inquest

Before filing, Kerker must mail each Defaulting Defendant the proposed findings and conclusions, supporting materials, and a copy of the order at that defendant’s last known address. Kerker must file proof of mailing with the court. Each Defaulting Defendant may serve and file a response by December 30, 2022.

The court may conduct the inquest based solely on written submissions. Any party seeking an evidentiary hearing on damages or other monetary relief must explain why written submissions would be inadequate and describe the witnesses and evidence proposed for the hearing.

Disposition

Judge Moses entered a scheduling order governing the damages inquest. The opinion did not decide the amount of damages, determine the ultimate liability of the Defaulting Defendants, or enter a final damages judgment.