United States District Court, D. Connecticut
SHIRLEY RIVERA. Plaintiff,
WEST HAVEN SMILE DENTAL, LLC Defendant.
ORDER TO ENTER DEFAULT
A. Bolden, United States District Judge.
September 11, 2018, the Clerk of the Court issued a Rule
41(a) Notice in this action, warning the parties that the
case would be dismissed for lack of activity for more than
six months absent a timely explanation. 41(a) Notice, dated
Sept. 11, 2018, ECF No. 37. On September 30, 2018, Shirley
Rivera (“Plaintiff”) responded to the Notice,
explaining that she intended to move for a default judgment.
Response to 41(a) Notice, dated Sept. 30, 2018
(“Pl.'s Response”), ECF No. 38.
October 3, 2018, Ms. Rivera moved for default judgment
against West Haven Smile Dental, LLC
(“Defendant”) or, in the alternative, for a
motion to compel compliance with the initial discovery
protocols. Motion for Default Judgment, dated Oct. 3, 2018
(“Pl.'s Mot.”), ECF No. 39; Memorandum of Law
in Support of Pl.'s Mot., dated Oct. 3, 2018
(“Pl.'s Mem.”), annexed to Pl.'s Mot., at
October 30, 2018, the Court found that while it appeared the
default of Defendant should be entered, it was not clear from
the docket that Defendant was ever served with the
Court's Order granting its counsel's motion to
withdraw, or with any subsequent Order of this Court; nor was
it clear whether Ms. Rivera's response to the Rule 41(a)
Notice or motion for default judgment was served on
Defendant. Order to Show Cause, dated Oct. 30, 2018, ECF No.
40, at 2. To correct the defects in notice and ensure the
efficient resolution of this case, the Court ordered Ms.
Rivera to serve copies of all Orders and documents filed
since the motion to withdraw was filed, including the October
30, 2018 Order to Show Cause, and to file proof of such
service by November 16, 2018. Id. at 3. The Court
further ordered that West Haven Smile Dental, LLC's
default would be entered for failure to defend unless by
December 14, 2018, new counsel for West Haven Smile Dental,
LLC appeared to defend and show cause why Defendant's
default should not be entered for failure to defend.
November 15, 2018, Plaintiff filed proof that it had served
Daniel D. Kim, DDS at 2 Castle Walk, Scarsdale, New York,
with the documents required by the Order to Show Cause, by
delivering a copy of the documents to a person of suitable
age and discretion at that address, Joshua Kim, and by
mailing a copy to Dr. Kim. See Affidavit of Service,
annexed to Plaintiff's Response to Order to Show Cause,
dated Nov. 12, 2018, ECF No. 41-1. A cover letter
accompanying the documents alleges that Dr. Kim is the
“sole member” of West Haven Smile Dental, LLC, a
limited liability corporation. See Plaintiff's
Response to Order to Show Cause filed Nov. 15, 2018, ECF No.
41, at 1.
is alleged to be “Defendant Owner” in the
Complaint. See Compl. ¶10. In its Answer,
Defendant admitted that it was a “limited liability
company created and existing under the laws of the State of
Connecticut” but did not admit any facts as to its
ownership. See Answer, dated Apr. 18, 2016, ECF No.
9, ¶ 2 (admitting Compl. ¶ 2) & ¶ 10
(stating insufficient knowledge of facts in Compl. ¶
10). No. other evidence in the record directly indicates Dr.
Kim's relationship to Defendant.
a search of the Connecticut Secretary of State's business
records reveals that Defendant is registered under Business
ID number 1059460 with a business address of 666 Campbell
Avenue, West Haven, CT 06516 (the same address alleged in the
Complaint and admitted by Defendant, Compl. ¶ 2).
See Conn. Sec'y of State, Commercial Recording
Division, West Haven Smile Dental LLC,
Inquiry&eid=9740. That record lists “Daniel D Kim
DDS LLC” as a principal with the title “Member,
” with a residence address of 2 Castle Walk, Scarsdale,
New York. Id. In addition, in a
separate civil action filed in state court, Dr. Kim was
listed as Defendant's sole witness apart from the
plaintiff in that case. See Trial Management Report
of Defendant, Perez v. West Haven Smile Dental, LLC,
No. NNHCV156057363S, Entry No. 119.00 (Super. Ct. New Haven
Sept. 29, 2017).
Court therefore concludes that Plaintiff properly complied
with the Order to Show Cause.
than one month has passed since the December 14, 2018
deadline in the Order to Show Cause. New counsel for West
Haven Smile Dental, LLC has to date not appeared to defend
and show cause why Defendant's default should not be
entered for failure to defend.
the Court finds that Defendant has failed to defend and that
its default should be entered under Federal Rule of Civil
Procedure 55(a). The Clerk of the Court is
respectfully directed to enter the default of West Haven
Smile Dental, LLC.
a party's default is deemed to constitute a concession of
all well pleaded allegations of liability, it is not
considered an admission of damages. Damages, which are
neither susceptible of mathematical computation nor
liquidated as of the default, usually must be established by
the plaintiff in an evidentiary proceeding in which the
defendant has the opportunity to contest the amount.”
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
Corp., 973 F.2d 155, 158 (2d Cir. 1992).
therefore is directed to move for default judgment under
Federal Rule of Civil Procedure 55(b) by February 8,
2019. The Court will hold an inquest hearing on the
motion on March 7, 2019 at 12:00 p.m.