Free Motion for Default Judgment - District Court of Delaware - Delaware

Case 1:08-cv-00375-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE * * * Plaintiff, * Case No. 1:08-cv-00375-GMS * v. * * BLUESKY BRANDS, INC. * * Defendant. * * **************************************************************************************************** REQUEST FOR ENTRY OF DEFAULT AND JUDGMENT BY DEFAULT Plaintiff, Branch Banking and Trust Company (the "Plaintiff"), by Louis J. Ebert of Thomas & Libowitz, P.A., its attorneys, requests that the Clerk: (a) enter the default of the Defendant, Bluesky Brands, Inc. ("Bluesky"), pursuant to Rule 55(a) of the Federal Rules of Civil Procedure; and (b) enter a judgment by default in favor of the Plaintiff and against Bluesky in the amount of: (1) One Million Four Hundred Sixty-Three Thousand One Hundred Seventy-Five Dollars and Fifteen Cents ($1,463,175.15); (2) late fees of Two Thousand Eight Hundred Fifty Dollars and Sixty-Six Cents ($2,850.66); (3) prejudgment interest through August 25, 2008 in the amount of Sixty-Three Thousand Five Hundred Ninety-Six Dollars and Sixty-Nine Cents ($63,596.69); (4) pre-judgment interest at the rate of One Hundred Ninety-Three Dollars and Five Cents ($193.05) per day after August 25, 2008 to the date of entry of judgment; (5) post-judgment interest; and (6) costs pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, and for reasons states: 1. The Plaintiff filed this suit against Bluesky seeking a judgment for amounts BRANCH BANKING AND TRUST COMPANY

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owed to the Plaintiff by Bluesky pursuant to a Guaranty Agreement dated October 10, 2006 (the "Guaranty"). 2. As more fully appears from the Proof of Service filed in this case on July

22, 2008, Bluesky's registered agent for service of process, Corporation Service Company, was served with the Summons and Complaint in this case in the State of Delaware on July 1, 2008. 3. The twenty day period during which Bluesky was required to respond to

the Complaint pursuant to Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure expired on July 21, 2008. 4. As more fully appears from the docket entries in this case, Bluesky has

failed to respond to the Complaint. 5. Rule 55(a) of the Federal Rules of Civil Procedure provides that "When a

party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." 6. Furthermore, Rule 55(b)(1) of the Federal Rules of Civil Procedure

provides that "When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person." 7. Consequently, if the clerk enters Bluesky's default, the clerk may also

enter a judgment by default against Bluesky if the Plaintiff's claim is for a sum certain or

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for a sum which can by computation be made certain and an affidavit of the amount due is submitted. 8. Attached hereto as Exhibit A is an affidavit of John F. Beatty (the "Beatty

Affidavit"), an officer of the Plaintiff reflecting the computation of the sum due under the Guaranty, excluding attorneys' fees. 9. Without waiving its claim for attorneys' fees if Bluesky contests the entry of

judgment or if judgment by default is not entered and further legal services are required, in the interest of achieving finality in this case, if a judgment by default is entered against Bluesky for all principal, late fees, and interest due as reflected in the Beatty Affidavit plus costs, the Plaintiff will not pursue its claim against Bluesky for attorneys' fees in this case. WHEREFORE, the Plaintiff requests that the clerk: 1. 2. Enter the default of Bluesky; and Enter a judgment by default in favor of the Plaintiff and against Bluesky in (a) One Million Four Hundred Sixty-Three Thousand One Hundred

the amount of:

Seventy-Five Dollars and Fifteen Cents ($1,463,175.15); (b) late fees of Two Thousand Eight Hundred Fifty Dollars and Sixty-Six Cents ($2,850.66); (c) pre-judgment interest through August 25, 2008 in the amount of Sixty-Three Thousand Five Hundred NinetySix Dollars and Sixty-Nine Cents ($63,596.69); (d) pre-judgment interest at the rate of One Hundred Ninety-Three Dollars and Five Cents ($193.05) per day after August 25, 2008 to the date of entry of judgment; (e) post-judgment interest; and (f) costs.

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Respectfully submitted, THOMAS & LIBOWITZ, P.A. /s/ Louis J. Ebert Louis J. Ebert, Esquire Bar No. 4625 1105 Market Street Suite 300 Wilmington, DE 19801 Phone: 302-261-2419 and 100 Light Street Suite 1100 Baltimore, MD 21202 Phone: 443-927-2116 Fax: 410-752-0979 Attorneys for Plaintiff Dated: August 29, 2008

CERTIFICATE OF SERVICE I HEREBY CERTIFY, that on this 29th day of August, 2008, a copy of the foregoing Request for Entry of Default and Judgment By Default with supporting Affidavit were served via first class mail, postage prepaid, on Corporation Service Company, Registered Agent for Bluesky Brands, Inc., 2711 Centerville Road, Suite 400, Wilmington, DE 19808.

/s/ Louis J. Ebert Louis J. Ebert

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