SunSouth Capital, Inc. v. Harding Enterprises, LLC et al

Filing 65

MEMORANDUM OPINION AND ORDER that Plaintiff's 64 Motion for Default Judgment is GRANTED as further set out in the opinion and order. Plaintiff shall file its requests for attorney's fees and taxation of other costs on or before 11/13/2017. Final judgment will be entered after resolution of the attorney's fees issue. Signed by Chief Judge William Keith Watkins on 10/12/2017. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
SUNSOUTH CAPITAL, INC.,
Plaintiff,
v.
HARDING ENTERPRISES, LLC,
and GREGGORY A. HARDING,
Defendants.

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CASE NO. 1:15-CV-823-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff SunSouth Capital’s Motion for Default Judgment
(Doc. # 64) against Defendant Harding Enterprises, LLC, filed pursuant to Federal
Rule of Civil Procedure 55(b)(1), which is construed as a motion under Rule
55(b)(2).

The record reflects that Plaintiff has complied with the procedural

requirements for obtaining a default judgment, as it has secured an entry of default
from the Clerk of the Court based upon Defendant’s failure to have counsel represent
it. (Doc. # 63); see Fed. R. Civ. P. 55(a). Harding Enterprises’s “cavalier disregard
for a court order is a failure, under Rule 55(a), to ‘otherwise defend as required by
these rules.’” Shapiro, Bernstein & Co. v. Cont’l Record Co., 386 F.2d 426, 427 (2d
Cir. 1967). For the reasons that follow, the court finds that the entry of default

judgment, in accordance with Rule 16(f) and Rule 37(b)(2)(A)(vi) of the Federal
Rules of Civil Procedure, against Harding Enterprises is appropriate.
“[A] corporation may appear in the federal courts only through licensed
counsel.” Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S.
194, 202–03 (1993). In light of this well-settled law, “[a] corporation that terminates
its attorney is in peril of a default judgment, which is an appropriate sanction if the
failure to obtain successor counsel persists and is willful.” Fappiano v. MacBeth,
No. 309-CV-00043CSH, 2010 WL 1839946, at *1 (D. Conn. May 7, 2010).
On March 17, 2017, counsel for Harding Enterprises filed a motion to
withdraw as its counsel, citing “a failure of communication and agreement.” (Doc.
# 51.) On April 13, 2017, the court entered an Order granting that motion and giving
Harding Enterprises until June 1, 2017, to find new counsel. (Doc. # 52.) The June
1 deadline passed without an attorney appearing on behalf of Harding Enterprises or
a word from Harding Enterprises. (Doc. # 57.) It has not defended this action since
the entry of the April 13 Order; it has filed nothing with the court or otherwise
demonstrated an intention to defend this action. Harding Enterprises’s ongoing
silence in this action over the past six months demonstrates a willful disregard of the
court’s order, making default judgment an appropriate sanction. See Giovanno v.
Fabec, 804 F.3d 1361, 1365–66 (11th Cir. 2015).

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Based upon Harding Enterprises’s willful disregard of the court’s order
directing it to retain counsel, the court will treat the well-pleaded allegations as to
liability in the verified complaint, as well as the accompanying exhibits, as true and
admitted by Defendant. The verified complaint and its attachments provide a
“sufficient basis” to support a finding that Harding Enterprises is liable to Plaintiff
on the claims alleged. Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d
1200, 1206 (5th Cir. 1975).1
On the issue of damages, “all essential evidence is already on record,” Sec.
Exch. Comm’n v. Smyth, 420 F.3d 1225, 1231–32 & n.13 (11th Cir. 2005), and,
therefore, a hearing is not required. See Fed. R. Civ. P. 55(b)(2). Specifically,
having considered Plaintiff’s evidentiary submission (Doc. # 54) and verified
pleading (Doc. # 1), the court finds that Plaintiff has proven that it is entitled to
recover $373,729.58 from Harding Enterprises for its breach of various heavy
equipment leases.
Accordingly, it is ORDERED that Plaintiff’s Motion for Default Judgment
(Doc. # 64) is GRANTED. Plaintiff shall file its requests for attorney’s fees and
taxation of other costs on or before November 13, 2017.

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In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit issued prior to October 1, 1981. See 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
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Final judgment will be entered after resolution of the attorney’s fees issue.
DONE this 12th day of October, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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