The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PHARMERICA EAST, LLC,
Plaintiff,
Case No. 2:19-cv-4762
Vv. JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Chelsey M. Vascura
GENERATION HEALTH &
REHABILITATION CENTER LLC,
Defendant.
OPINION & ORDER
This matter is before the Court on Plaintiff PharMerica East, LLC’s (“Plaintiff) Motion
for Default Judgment Against Defendant Generation Health & Rehabilitation Center LLC
(“Defendant”) (ECF No. 7). Defendant has not opposed Plaintiffs motion. For the reasons below,
the Court GRANTS Plaintiff's Motion for Default Judgment (ECF No. 7).
I.
Plaintiff filed this case against Defendant on October 28, 2019. Plaintiff asserts three
claims: (1) breach of contract; (2) promissory estoppel; and (3) unjust enrichment/constructive
trust. (See Compl. ff 19-43, ECF No. 1.) Plaintiff moved for, and obtained, an entry of default
against Defendant when Defendant failed to answer or otherwise respond to Plaintiff's Complaint.
(See Entry Default, ECF No 6.) Since the entry of default, Defendant has still not answered or
otherwise responded. As such, Plaintiffnow requests that the Court grant default judgment against
Defendant on all claims. (See Mot. Default J., ECF No. 7.) Additionally, Plaintiff seeks:
(1) $226,438.42 for damages; (2) $36,767.32 plus $111.78 for each day after December 4, 2019,
until judgment for prejudgment interest; (3) post-judgment interest from the date of judgment at
the applicable rate; (4) $5,440.50 for attorneys’ fees; and (5) $558.15 for court costs. (Jd. at 3.)
For support, Plaintiff submits the affidavit of Jennifer Yowler, Plaintiff's Senior Vice President
and Chief Financial Officer and the affidavit of Elizabeth Brown Noland, Plaintiff’s counsel for
this matter. (id. at Ex. A, B.)
Because of the default entry, the Court takes Plaintiff’s allegations regarding Defendant’s
liability as true. See DT Fashion LLC v. Cline, No. 2:16-cv-1117, 2018 WL 542268, at *1 (S.D.
Ohio Jan. 24, 2018). The Court relates those allegations below.
Defendant owns and operates a skilled nursing facility in Newark, Ohio. (Compl. { 1.) On
or about May 14, 2018, Plaintiff and Defendant entered into a Pharmacy Services Agreement (“the
Agreement”). (Compl. 78.) Pursuant to the Agreement, Plaintiff agreed to provide pharmacy
related goods and services to the residents of Defendant’s facility and Defendant agreed to pay for
such goods and services. (/d.) Defendant commenced performance on June 1, 2018, and
periodically submitted written orders for goods and services to Plaintiff. (/d. at §9.) Plaintiff
filled those orders. (/d.) Defendant received and accepted delivery of the goods and services.
Ud.) Plaintiff performed all of its obligations under the Agreement including timely submission
of monthly invoices to Defendant. (/d. at { 10.)
The Agreement required Defendant to pay the amount listed on each invoice within 90
days of the date of the invoice. (/d. at $11.) By July of 2018, Defendant owed Plaintiff significant
amounts of money past due. (/d. at § 12.) Defendant, however, assured Plaintiff of payment and
thus, Plaintiff continued to provide Defendant goods and services until April 1, 2019. (/d@.) On
September 24, 2019, Plaintiff issued Defendant a demand letter for the amounts due and owing
under the Agreement. (/d. at 913.) Plaintiff gave Defendant until October 1, 2019. (Ud)
Defendant refused to pay the amount it owed Plaintiff. (/d. at 9 14.)
The reasonable value of the goods and services Plaintiff provided and did not receive
payment for is $226,438.42 exclusive of interest, late fees, attorney’s fees, and costs. (Jd. at { 15.)
Defendant has been reimbursed by Medicare for a significant portion of the goods and services
Plaintiff provided. (/d. at { 16.)
The Agreement provides that interest is to be charged on all outstanding amounts calculated
at a monthly rate of 1.5%. (/d. at $17.) Additionally, the Agreement provides that Defendant
shall pay Plaintiff's costs and attorney’s fees in collecting amounts owed under the agreement.
(Id. at J 18.)
Il.
Federal Rule of Civil Procedure 55 “contemplates a two-step process in obtaining a default
judgment against a defendant who has failed to plead or otherwise defend.” Columbus Life Ins.
Co. v. Walker-Macklin, No. 1:15-cv-535, 2016 WL 4007092, at *2 (S.D. Ohio July 26, 2016).
First, a plaintiff must request an entry of default from the Clerk of Courts. Fed. R. Civ. P. 55(a).
Upon the Clerk’s entry of default, “the complaint’s factual allegations regarding liability are taken
as true, while allegations regarding the amount of damages must be proven.’” United States v.
Parker-Billingsley, No. 3:14-cv-307, 2015 WL 4539843, at *1 (S.D. Ohio Feb. 10, 2015) (quoting
Broad, Music, Inc. v. Pub Dayton, LLC, No. 3:11-cv-58, 2011 WL 2118228, at *2 (S.D. Ohio May
27, 2011)).
If the plaintiff's claims are not for “a sum certain or a sum that can be made certain by
computation,” the plaintiff must then apply to the Court for a default judgment. Fed. R. Civ. P.
55(b). “Thus, while liability may be shown by well-pleaded allegations, the district court must
conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” DT
Fashion LLC, 2018 WL 542268, at *2 (quoting Parker-Billingsley, 2015 WL 4539843, at *1). A
court may determine damages without holding an evidentiary hearing if the damages are “capable
of ascertainment from definite figures contained in the documentary evidence or in detailed
affidavits.” Parker-Billingsley, 2015 WL 4539843, at *1.
The Court finds Plaintiffs Complaint establishes liability in this case. The parties had an
agreement under which Defendant promised to pay Plaintiff for goods and services provided.
Relying on Defendant’s promise to pay, Plaintiff provided those goods and services. Defendant
has not paid. Defendant breached the contract. Additionally, Defendant has been paid by
Medicare, and thus, has been unjustly enriched.
Plaintiff's well-plead allegations have established liability, but the company “must still
establish the extent of damages.” Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995)
(internal citations omitted). Rule 55(b)(2) provides that a district court “may” hold a hearing on a
motion for default judgment when necessary to “conduct an accounting,” or “determine the amount
of damages.” In other words, the Rule, “by its terms, allows but does not require the district court
to conduct an evidentiary hearing.” Vesligaj v. Peterson, 331 F. App’x 351, 354 (6th Cir. 2009)
(citing Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989) (“[I]t was not
necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for
the damages specified in a default judgment.”)). The Court finds that a hearing is not necessary in
this case to determine damages. Jennifer Yowler’s and Elizabeth Noland’s affidavits sufficiently
establish damages and thus, do away with the need for a hearing.
Based on its motion, Ms. Yowler’s affidavit, Ms. Nolan’s affidavit, and the record, Plaintiff
is due the following: (1) damages for unpaid invoices in the amount of $226,438.42;
(2) prejudgment interest in the amount of $36,767.32 plus $111.78 each day until entry of
judgment; (3) attorney’s fees in the amount of $5,440.50; and (4) costs in the amount of $558.15.
Plaintiff also requests post-judgement interest. (See Mot. Default J. at 3.) Due to
Defendant’s default and failure to respond, Plaintiff will likely be delayed in securing payment of
the judgment. The Court finds post-judgment interest is appropriate pursuant to 28 U.S.C.
§ 1961(a).! See Gillette Co. v. Save & Disc. LLC, 2016 U.S. Dist. LEXIS 90925, at *11-12 (S.D.
Ohio July 13, 2016). In calculating post-judgment interest, the rate of the 52-week Treasury Bill
is an appropriate rate. Jd. (citing 28 U.S.C. § 1961); Isaac Ford v. Uniroyal Pension Plan, 154
F.3d 613, 619 (6th Cir. 1998). As of January 10, 2020, this rate was 1.49%.’ Compounded
annually, this yields $9.34 in interest per day.? Accordingly, Plaintiff is entitled to post-judgment
interest from the date judgment is entered at a rate of $9.24 per day, until the judgment is paid.
Ill.
For the reasons stated, Plaintiffs motion for default judgment against Defendant (ECF No.
7) is GRANTED. The Clerk is DIRECTED to enter judgment in accordance with this Opinion
and Order.
IT IS SO ORDERED.
\- a7 = Xo r6 oS
DATED EDMU □□□ ARGUS, JR.
UNITED STATES DISTRICT JUDGE
diversity cases in [the Sixth Circuit], federal law controls post judgment interest.” Estate of Riddle v. S. Farm
Bureau Life Ins. Co., 421 F.2d 400, 409 (6th Cir. 2005) (internal citations omitted).
? See https://www.treasury.gov/resource-center/data-chart-center/interest-rates/Pages/Text View.aspx?data=billrates
accessed on January 13, 2020.
3 .0149/365 x $226,438.42=$9.24.