United States District Court, D. Minnesota
Christopher J. Heinze, Esq and Libby Law Office, PA, counsel
appearance by defendants.
S. Doty, Judge
matter is before the court upon the motion for default
judgment against defendants SASS Corporation and Omar Wazwaz.
Based on a review of the file, record, and proceedings
herein, and for the following reasons, the court grants the
is a Texas corporation, with its principal place of business
located in the State of Florida, specifically located at 9800
N.W. 41st Street, Suite 400, Miami, FL, 33178. Defendant SASS
CORP is a corporation incorporated and existing under the
laws of the State of Minnesota. Its principal place of
business is in the State of Minnesota, specifically located
at 3803 Stinson Boulevard, St. Anthony, MN, 55421. Defendant
Omar Wazwaz is an individual who is domiciled in the State of
Minnesota. Omar Wazwaz is the sole owner and shareholder of
SASS CORP was served with the Summons and Complaint in this
matter on December 19, 2016 through the Minnesota Secretary
of State. Defendant Omar Wazwaz was served with the Summons
and Complaint in this matter on December 20, 2016.
January 10, 2017, counsel for Omar Wazwaz, Steven T.
Grimshaw, contacted Plaintiff's counsel, and informed
Plaintiff's counsel that neither Defendant Omar Wazwaz or
Defendant SASS CORP would be filing an Answer to the
Complaint in this matter. More than the allowed time to
answer has elapsed since Defendants SASS CORP and Omar Wazwaz
were served in this action and Defendants have failed to
plead or otherwise defend as provided by the Federal Rules of
consideration of and as an inducement for Plaintiff to enter
into an Assumption Agreement with Defendant SASS CORP,
Defendant Omar Wazwaz personally guaranteed, on April 14,
2014 (“Individual Guaranty”), all of the debts of
the previous dealer under the original Motor Fuel Agreement
dated October 26, 2011. Additionally, Defendant Omar Wazwaz
agreed to pay reasonable attorney's fees and all costs
and other expenses incurred by Plaintiff as a result of any
such default or in enforcing the Individual Guaranty.
Thereafter, Plaintiff and Defendants SASS CORP and Omar
Wazwaz entered into the Assumption Agreement on June 11, 2014
whereby Defendants SASS CORP and Omar Wazwaz assumed all
rights and obligations under the Motor Fuel Agreement's
about March 6, 2015 Defendants SASS CORP and Omar Wazwaz
breached the Supply Agreement and Assumption Agreement by
failing to purchase motor fuel from Plaintiff, failing to pay
Plaintiff for motor fuel already received, and ceasing
operations at the retail gasoline station located at 3803
Stinson Boulevard in St. Anthony, Minnesota. In addition,
Defendant Omar Wazwaz breached the Individual Guaranty by
failing to pay Plaintiff the debt owed by Defendant SASS
CORP. Plaintiff suffered damages in this matter due to
Defendants' actions and inactions for a total amount of
Minnesota law, a breach of contract claim contains the
following elements: “(1) formation of a contract; (2)
performance by plaintiff of any conditions precedent; (3) a
material breach of the contract by defendant; and (4)
damages.” Parkhill v. Minn. Mut. Life Ins.
Co., 174 F.Supp.2d 951, 961 (D. Minn. 2000) (citing
Briggs Trans. Co. v. Ranzenberger, 217 N.W.2d 198,
200 (Minn. 1970)). The formation of a contract requires an
offer, acceptance, and consideration. See Taxi Connection
v. Dakota, Minnesota & Eastern R.R. Corp., 513 F.3d
823, 826 (8th Cir. 2008) (citing Commercial Assocs., Inc.
v. Work Connection, Inc., 712 N.W.2d 772, 782
(Minn.Ct.App. 2006)); see also Cederstrand v. Lutheran
Bhd., 263 Minn. 520, 529-32, 117 N.W.2d 213, 219- 21
(1962). “Consideration is something of value exchanged
for a performance or promise of performance.” In re
MJK Clearing, Inc., 408 F.3d 512, 515 (8th Cir. 2005)
(citing E.J. Baehr v. Penn-O-Tex Oil Corp., 258
Minn. 533, 104 N.W.2d 661, 665 (1960)).
reviewed Plaintiff's Complaint, Motion for Default
Judgment, and Affidavit in Support of Default Judgment, this
Court finds that Defendants SASS CORP and Omar Wazwaz
breached its contracts with Plaintiff.
may enter a default judgment against a party who “fails
to appropriately respond in a timely manner.” See
Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010);
see also Fed. R. Civ. Proc. 55(b)(2). However,
default judgments are generally not favored by the courts.
Rogovsky Enter. v. Masterbrand Cabinets, Inc., 88
F.Supp.3d 1034, 1039 (D. Minn. 2015); Berthelsen v.
Kane, 907 F.2d 617, 620 (6th Cir. 1990). The court has
the discretion to enter a default judgment. Belcourt Pub.
Sch. Dist. v. Herman, 786 F.3d 653, 661 (8th Cir. 2015).
The court may consider a several factors when entering
default judgment such as: whether the defaulting party's
actions were inadvertent or de minimis; whether the default
resulted from bad faith; the possibility of prejudice to the
plaintiff; the merits of the plaintiff's substantive
claim; the sufficiency of the complaint; the amount of the
claim; and whether the default was due to excusable neglect.
Forsythe v. Hales, 255 F.3d 487, 490 (8th Cir.
2001); Bambu Sales v. Ozak Trading, 58 F.3d 849,
852-854 (2d Cir. 1995); Grandbouche v. Clancy, ...