United States District Court, N.D. Mississippi, Aberdeen Division
GOLDEN TRIANGLE VEIN CENTER and DR. DARYL GUEST PLAINTIFFS
TOTAL BODY CONTOURING INCORPORATED and KEVIN LEROY SIMONS DEFENDANTS
M. Brown UNITED STATES DISTRICT JUDGE.
the Court is Golden Triangle Vein Center and Dr. Daryl
Guest's “Renewed Motion for Default Judgment on the
Issue of Damages.” Doc. #36.
August 10, 2015, Golden Triangle Vein Center and Dr. Daryl
Guest filed a complaint against Total Body Contouring
Incorporated (“Total Body”) and Kevin Leroy
Simons, claiming breach of contract, unjust enrichment, and
fraud/negligent misrepresentation regarding a Lipocontrol
Osyris 980 Diode Laser Machine for which they paid $96,
670.00 but never received. Doc. #1. On April 13, 2016, the
Clerk of the Court, on the plaintiffs' application,
entered default against Total Body and Simons. Doc. #17; Doc.
#18. Approximately one week later, the plaintiffs filed a
motion for default judgment. Doc. #19.
this Court deferred decision on the motion for default
judgment, the plaintiffs filed a supplement to their motion.
Doc. #27. On March 23, 2017, the Court granted default
judgment on the plaintiffs' breach of contract claim but
denied it on the claims for unjust enrichment, negligent
misrepresentation, and fraudulent misrepresentation. Doc.
#31. The Court's order denied the motion without
prejudice on the issue of damages. Id. On April 14,
2017, the plaintiffs filed the instant “Renewed Motion
for Default Judgment on the Issue of Damages.” Doc.
a default judgment “[a] plaintiff bears the burden of
proving his damages.” Niemi v.
Lasshofer, 770 F.3d 1331, 1355 (10th Cir. 2014); see
Flynn v. People's Choice Home Loans, Inc., 440 F.
App'x 452, 457 (6th Cir. 2011) (after default judgment,
“the burden of establishing damages rest[s] squarely
and solely” on plaintiff). Generally, a district court
may only award damages without an evidentiary hearing if
“the amount claimed is a liquidated sum or one capable
of mathematical calculation.” James v. Frame,
6 F.3d 307, 310 (5th Cir. 1993).
damages, “[a] default judgment must not differ in kind
from, or exceed in amount, what is demanded in the
pleadings.” Fed.R.Civ.P. 54(c). Therefore, “the
relief prayed for in a complaint defines the scope of relief
available on default judgment.” United States v.
Giles, 538 F.Supp.2d 990, 994 (W.D. Tex. 2008); see
Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007) (Rule
54(c) “permits neither increases ‘in kind ... or
... in amount' from the figure specified in the demand
for judgment”). If the requested relief does not differ
in kind from, or exceed in amount, what is demanded in the
pleadings, the Court must then determine “if the
requested relief is appropriate based on governing
law.” Fagan v. Lawrence Nathan Assocs., Inc.,
957 F.Supp.2d 784, 801 (E.D. La. 2013).
in the complaint's prayer for relief, the plaintiffs
request “compensatory damages, punitive damages,
pre-judgment and post-judgment interest, costs, and all other
relief to which they may show themselves justly
entitled.” Doc. #1 at 10. Elsewhere in the complaint,
the plaintiffs claim entitlement to the amount paid for the
machine, and that they have suffered damages that include
lost business opportunities, expenses associated with
training, costs, attorney's fees, and other damages.
Id. at 7-8.
their renewed motion for damages, however, the plaintiffs
contend that under Miss. Code Ann. §§ 75-2-711 and
75-2-713, they are entitled to recover the amount paid to the
seller as well as incidental and consequential damages. Doc.
#37 at 2-3. Specifically, the plaintiffs seek recovery for
(1) the amount paid to the defendants for the machine; (2)
“special damages under the UCC” incurred in
reliance on the defendants' representation that they
would receive the machine (such as $4, 112.79 for travel
expenses to and from Chattanooga, Tennessee, for training in
anticipation of receiving the machine; $2, 600.00 for office
renovations to accommodate the machine, and $4, 586.21 for
supplies to be used with the machine); and (3) pre- and
post-judgment interest. Id. at 3-5.
Mississippi's Uniform Commercial Code allows for the
recovery of consequential and incidental damages, nowhere in
their complaint do the plaintiffs seek consequential or
incidental damages. Nor do the plaintiffs assert allegations
relating to office renovations or the purchase of extra
supplies. Because a plaintiff can only recover from a
defaulted defendant relief requested in the pleadings, the
Court cannot consider the plaintiffs' request for
incidental and consequential damages. See Silge, 510 F.3d
at 159-60 (plaintiff not entitled to pre-judgment interest
against defaulted defendant because such not requested in
complaint); Pa. Nat. Mut. Cas. Ins. Co. v. Edmonds,
No. 09-0089, 2010 WL 761332, at *7 (S.D. Ala. Mar. 3, 2010)
(categories of compensatory damages not demanded in complaint
excluded from damages). Accordingly, the Court will consider
only the plaintiffs' request for recovery of the contract
price and pre- and post-judgment interest.