                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 12 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    WORLD ALLIANCE CONSULTING,
    INC., a Utah corporation,

                  Plaintiff - Appellant,
                                                         No. 01-4188
    v.                                                D.C. No. 01-CV-83-J
                                                           (D. Utah)
    DOCPLANET.COM, INC., a Colorado
    corporation,

                  Defendant - Appellee.


                               ORDER AND JUDGMENT         *




Before MURPHY , ANDERSON , and HARTZ , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff World Alliance Consulting appeals the district court’s denial of its

motion for default judgment in the amount of $1,000,000, and the court’s grant of

default judgment requiring defendant DocPlanet.com to deliver 300,000 shares of

its stock to plaintiff. Because plaintiff has not shown that the district court

abused its discretion, we affirm.

      On March 20, 2000, as the “dot.com bubble” began to collapse, plaintiff

and defendant entered into a consulting agreement under which plaintiff was to

advise defendant on potential mergers and acquisitions. As an initial payment,

defendant was required within seven days to deliver either 300,000 shares of

DocPlanet.com stock or $300,000. Defendant never made the initial payment.

      In February 2001, plaintiff brought this diversity action, serving defendant

through the corporation’s registered agent. Plaintiff’s complaint sought specific

performance of the contract, consequential damages, attorney fees, and “[a]s to

any defaulting party, a judgment for monetary damages in the amount of One

Million dollars.” Aplt. App. at 7. After defendant failed to respond, the clerk

entered a default on April 23, 2001. Plaintiff then moved for default judgment in

the amount of $1,000,000 based on its plea in the complaint, as supported by

counsel’s affidavit describing the price of DocPlanet.com stock at the end of

March 2000. The district court denied plaintiff’s request for $1,000,000, but

granted plaintiff a default judgment for 300,000 shares of DocPlanet.com stock.


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      Plaintiff argues that the district court erred in refusing to grant the motion

for a “sum certain” under Fed. R. Civ. P. 55(b)(1), arguing that the $1,000,000

amount was identified in the complaint. We review a district court’s grant of

default judgment for an abuse of discretion, considering the totality of the

circumstances. Ruplinger v. Rains (In re Rains), 946 F.2d 731, 732 (10th Cir.

1991). “Abuse of discretion will be found only if the reviewing court has a

definite and firm conviction that the court below committed a clear error of

judgment in the conclusion it reached upon a weighing of the relevant factors.”

Id. (further quotation omitted).

      Here, plaintiff brought a breach of contract seeking the remedy identified

by the parties in the contract: specific performance of the promise to deliver

300,000 shares of DocPlanet.com stock. See Aplt. App. at 5-7 (complaint), 12

(agreement recognizing that “in the event of a breach . . . money damages would

be inadequate” and therefore the parties’ “rights and obligations shall be

enforceable in a court of equity by a decree of specific performance”). Plaintiff’s

request in its complaint for a $1,000,000 penalty upon defendant’s default did not

modify the parties’ original agreement to include a liquidated damages provision.

Thus, plaintiff’s lawsuit was not for a sum certain under Rule 55(b)(1). See KPS

& Assoc., Inc. v. Designs by FMC, Inc., ___ F.3d ___, Nos. 01-2513 & 01-2521,

2003 WL 174818 (1st Cir. Jan. 28, 2003) (holding the fact that complaint and


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accompanying affidavit identified a particular amount of damages did not

transform the suit into one for a “sum certain” under Rule 55(b)(1)).

      Instead, plaintiff’s action sought specific performance and unliquidated

damages under Rule 55(b)(2), and the district court properly based its judgment

on the parties’ agreement and counsel’s affidavit. Under the totality of the

circumstances, we conclude the district court did not abuse its discretion in

enforcing the agreement as written. Because counsel’s affidavit did not identify

any work performed by his client under the agreement, the district court had no

basis to compensate plaintiff for any incurred expenses or damages. For the same

reason, the district court had no basis upon which to award attorney fees.

     The judgment of the United States District Court for the District of Utah is

AFFIRMED.



                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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