MEMORANDUM ORDER

JANE BOYLE, District Judge

Before the Court is Mori Seiki USA's Amended Rule 55(b)(2) Motion for a Default Damages Award of $104,225.00 Against Defendant Ernold Simmons (doc. 42) and Mori Seiki's Supplemental Brief on Motion for Default Damages Against Ernold Simmons (doc. 55). After due consideration and review of the record and all evidence presented, the Court finds that this motion should be GRANTED.

I. BACKGROUND

The docket reflects that, on March 22, 2007, Simmons executed a waiver of service of summons through Charles F. Allan, his criminal attorney in the related criminal case of United States v. Diane Louise McIntyre, Gladys Davis-Simmons, Ernold Simmons and Elise Tapper, U.S. District Court for the N.D. Texas, Case No. 3:06-cr-00304. On March 23, 2007, Mori Seiki filed the executed waiver of service of summons with the Court. Simmons' answer was due on April 9, 2007. Simmons has not filed a responsive pleading or made an appearance in this case. On May 21, 2007, Ernold Simmons pled guilty in the related criminal proceeding (06-cr-304) involving mail fraud and aiding and abetting. He filed a factual resume stating that he was involved in a scheme to defraud Mori Seiki in which McIntyre created a fraudulent recruiting invoice, Mori Seiki issued a check to Simmons, McIntyre sent an e-mail to Davis-Simmons with the invoice, Simmons deposited the check, and Simmons wired money to McIntyre's account. (Ex. B to Mori Seiki's Mot. for Default J.).

Mori Seiki filed a Motion for Default Judgment Against Ernold Simmons on August 28, 2007, requesting $41,525.00 in damages (doc. 34). The Court considered this Motion for Default Judgment by telephone conference on September 4, 2007. Simmons received notice that he was required to attend this conference but failed to do so. In an Order dated September 6, 2007, the Court granted the Plaintiff's Motion for Default Judgment in the amount of $26,016.00 (doc. 41). The Court explained that while Mori Seiki was seeking $41,525.00 in damages, the evidence (Simmons' guilty plea in a criminal case involving mail fraud) showed that Simmons only retained $26,016 in his bank account after wiring money to McIntyre. The Court stated that Mori Seiki may file, on or before September 11, 2007, a written motion explaining why it is entitled to $41,525.00 in damages as opposed to $26,016.00. Pursuant to this Order, Mori Seiki filed an Amended Motion for Default Damages on September 11, 2007 requesting damages of $104,225 (doc. 42). The Court denied this motion without prejudice pending additional briefing on the issue of the propriety of granting a default judgment against one defendant when other defendants remain in the case. Pursuant to this Order, Mori Seiki filed the instant Supplemental Brief on Motion for Default Damages Against Defendant Ernold Simmons (doc. 55).

II. ANALYSIS

A. Propriety of Granting Default Judgment

The Court initially expressed concern over granting a default judgment as to one defendant — Simmons — when other defendants — Davis-Simmons, Penncorp, Pennachio, and McIntyre's executor — remain in the case. (Mori Seiki has recently dismissed its claims against Penncorp and Pennachio). Federal Rule of Civil Procedure 54(b) provides, "when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the . . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Many courts have held, based on Frow v. DeLaVega, 82 U.S. (15 Wall.) 552 (1872), that when the plaintiff alleges joint liability against multiple defendants, an entry of default as to some of the defendants is appropriate, but a judgment should not be entered until the case has been decided with regard to all of the defendants. Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145,147 (10th Cir. 1985) (quoting 10 C. WRIGHT, A. MILLER M. KANE, FEDERAL PRACTICE PROCEDURE § 2690, at 455-56 (1983)); Raleigh Cycle Co. of Am. v. Edward Risha, 1987 WL 11889, at * 1 (S.D. Tex. 1987) ("Where one of multiple defendants is in default, as a general rule, a decree of default may be entered, but a judgment is withheld pending a decision on the merits as to the other defendants."). The Seventh Circuit Court of Appeals has concluded that Frow does not preclude the entry of default judgment against one defendant when others remain if liability is joint and several. In re Uranium Antitrust Litig., 617F.2d 1248, 1258 (7th Cir. 1980). The Court explained that "when different results as to different parties are not logically inconsistent or contradictory, the rationale for the Frow rule is lacking." Id. The Court found it appropriate to enter a default judgment as to liability against less than all of the defendants; however, it refused to enter a default damages award until it resolved the liability of all of the defendants. Id. at 1262. The Court reasoned that it would be inconsistent to have two distinct determinations as to damages arising out of one price-fixing scheme. Id. at 1262. Similarly in Friedman, the Court stated, "[E]ven if the liability is joint and several and thus a default judgment may be entered, the courts have consistently held that it is appropriate to enter judgment solely as to liability and not as to the amount of damages to be assessed against the defaulting party, since a separate determination of damages would pose the prospect of inconsistent judgments." Friedman v. Lawrence, 1991 WL 206308, at * 3 (S.D.N.Y. 1991). The Court explained that the amount of damages the plaintiff could recover from the defaulting defendants should not differ from that recovered from the non-defaulting defendants. Id. at *4.

In this case, Ernold Simmons is liable for civil conspiracy, which imposes joint and several liability. Tompkins v. Cyr, 202 F.3d 770, 783 (5th Cir. 2000). The Court agrees with the rationale of the Court in Uranium that entry of default judgment as to liability is appropriate where liability is joint and several. The Court also concludes that the concerns regarding inconsistent damages awards in Uranium and Friedman are not present here. The remaining defendants are Davis-Simmons and McInyre's executor. Ernold Simmons is liable for a four check scheme involving Davis-Simmons and McInyre. By separate order, the Court has granted summary judgment in favor of Mori Seiki as to Davis-Simmons in the amount of $104,225. Simmons will be jointly and severally liable for this amount. Accordingly, there is no risk of inconsistent damages awards as between Simmons and Davis-Simmons. Finally, a different damages award against McIntyre would not be inconsistent. Mori Seiki has alleged additional causes of action against McIntyre and has alleged additional schemes, including those involving Pennachio and Penncorp. Furthermore, if McIntyre is found liable for this four check scheme, she will be jointly and severally liable for the $104,225 with Davis-Simmons and Simmons. The Court concludes that "there is no just reason for delay" and that it is appropriate to enter a default judgment as to liability and damages against Simmons. FED. R. CIV. P. 54(b). The Court now turns to the appropriate amount of default damages.

B. Amount of Damages

Ernold Simmons has admitted in his factual resume attached to his guilty plea to participating in a scheme to create fraudulent invoices and receive checks for recruiting services that were not performed. In this factual resume, Simmons admits that he received check number 095996 in the amount of $41,625. (Ex. D to Mot. For Default J.). Davis-Simmons', Simmons' wife and co-conspirator, factual resume admits that she received check number 096238 in the amount of $35,100. (Ex. 2 to Am. Mot. For Default J.). Mori Seiki has also presented evidence that check number 96582 for $15,000 and check number 3773 for $12,600 were involved in the scheme. This evidence includes an affidavit of Brian McGirk, the manager of Mori Seiki's accounting department, copies of these returned checks from Mori Seki made payable to Davis-Simmons, invoices, and requests for payment. (Ex. 3, Ex. A, Ex. B to Am. Mot. For Default J.). This evidence is sufficient to establish damages of $104,225. Simmons and Davis-Simmons (and McIntyre if she is found liable) will be jointly and severally liable for the amount of these four checks in their scheme because "[o]nce a conspiracy is proven, each co-conspirator `is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination.'" Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 926 (Tex. 1980) (quoting State v. Standard Oil Co., 107 S.W.2d 550, 559 (1937); see also Tompkins v. Cyr, 202 F.3d 770, 783 (5th Cir. 2000) ("[E]ach of the losing defendants is jointly and severally liable for the actions of the others because all were found to be co-conspirators in a civil conspiracy."). Furthermore, it is irrelevant that Simmons and Davis-Simmons transferred some of the money from the checks to McIntyre because the amount actually received by the co-conspirator is irrelevant. Kirby v. Cruce, 688 S.W.2d 161, 166 (Tex.App. 1985) (holding that the co-conspirators were jointly and severally liable even though only two of the defendants actually received the contributions). In conclusion, the Court finds that Davis and Davis-Simmons are jointly and several liable to Mori Seiki for $104,225. If McIntyre is found liable for this 4 check scheme she will be held jointly and severally liable for $104,225 along with Simmons and Davis-Simmons.

III. CONCLUSION

For the reasons set forth above, the Court GRANTS Mori Seiki's Amended Motion for Default Damages in the amount of $104,225. Davis-Simmons will be jointly and severally liable for this amount. In addition, McIntyre's executor will also be jointly and severally liable with Davis-Simmons and Simmons for this amount in the event that a damages award is imposed against her for this four check scheme.

SO ORDERED.