PEERLESS INDUSTRIES v. Herrin Illinois Cafe, Inc.
| Decision Date | 04 October 1984 |
| Docket Number | No. 84-906C (A).,84-906C (A). |
| Citation | 593 F. Supp. 1339 |
| Parties | PEERLESS INDUSTRIES, INC., d/b/a Peerless Hotel, Restaurant, Tavern Supplies, Plaintiff, v. HERRIN ILLINOIS CAFE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Norman Pressman, St. Louis, Mo., for plaintiff.
This case was filed by the plaintiff, a Missouri corporation, with its principal place of business in Missouri, against the defendant, Herrin Illinois Cafe, Inc., a corporation existing under the laws of the State of Illinois, with its principal place of business in Illinois.
Plaintiff sought to recover the amount of $11,828.01, which it alleges the defendant owed it for goods sold and delivered by the plaintiff between September of 1983 and March of 1984.
The case was set for a default hearing upon the motion of the plaintiff, since no answer was filed. On the date of the hearing, the plaintiff introduced the testimony of Gary S. Leabman, the president of the plaintiff corporation, and a computer printout of the account purported to be owed by the defendant was produced (Exhibit 1).
No evidence was offered with respect to the status of the defendant as an Illinois corporation that was in existence at the time the suit was filed.
The matter of proof with respect to the defendant being an Illinois corporation was called to the attention of plaintiff's attorney, and he stated that Rule 8(d) took care of this matter. In all the default cases tried in this Court where corporations were involved, proof has been made of the incorporation. In this case, a fact that is germane to jurisdiction in the case is the status of the defendant, as jurisdiction is based on diversity of citizenship, and more than ten thousand dollars involved. Jurisdiction is the first question for the Court to address.
In Bross Utilities Service Corp. v. Aboubshait, 489 F.Supp. 1366 (D.Conn. 1980), affirmed without a published opinion, 646 F.2d 559 (2nd Cir.1981), the trial court raised questions concerning its personal jurisdiction over the defendant at a hearing to determine damages upon default, despite allegations of proper service. Finding the facts insufficient for proper service in Connecticut, the court set aside its original order for default and dismissed plaintiff's action. The Second Circuit Court of Appeals affirmed this action by the district court without opinion.
In sum, Rule 55(b)(2) allows the court discretion to require proof of necessary facts to support a valid cause of action, and if such facts are lacking, the court can choose not to enter default judgment.
It is not uncommon, particularly with respect to corporations that are in default, that their charter is in default, and that suits have to be brought against the parties when the state...
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