Placid Refining Co., L.L.C. v. Trailer Sales, Inc. et al

Filing 25

OPINION. Signed by Honorable Judge Myron H. Thompson on 6/30/2011. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

PLACID REFINING CO., L.L.C.,
)
)
Plaintiff,
)
)
v.
)
)
TRAILER SALES, INC.,
)
HI-RIDGE TRANSPORT, INC., )
and KENDRICK RAY MCCULLOUGH,
)
)
Defendants.
)

CIVIL ACTION NO.
2:11cv117-MHT
(WO)

OPINION
Plaintiff Placid Refining Co., L.L.C. filed this
lawsuit against defendants Trailer Sales, Inc., Hi-Ridge
Transport, Inc., and Kendrick Ray McCullough, bringing
state claims arising from Trailer Sales’ alleged failure
to

pay

for

Refining.

goods

ordered

and

received

from

Placid

Jurisdiction is proper pursuant to 28 U.S.C.

§ 1332 (diversity).

This lawsuit is now before the court

on Placid Refining’s motion for default judgment against
Hi-Ridge Transport and McCullough.

Placid Refining has

not moved the court to enter a default judgment against

Trailer Sales, which is currently engaged in bankruptcy
proceedings.

Placid Refining requests damages against

Hi-Ridge Transport and McCullough jointly in the amount
of $ 695,142.05, plus post-judgment interest.

Placid

Refining also seeks the additional sum of $ 93,448.33
against Hi-Ridge Transport, plus pre-judgment interest.
This case concerns a credit agreement entered into by
Placid Refining and Trailer Sales, under which Placid
Refining agreed to sell refined petroleum products to
Trailer Sales.

According to Placid Refining, Trailer

Sales has failed to pay for delivered petroleum products,
despite repeated demands for payment.

As stated, Trailer

Sales is currently engaged in bankruptcy proceedings.

On

April 4, 2011, Trailer Sales listed Placid Refining’s
claim

as

undisputed

in

a

bankruptcy

filing

titled

“Schedule F - Creditors Holding Unsecured Nonpriority
Claims.”

Mot.

Default

J.

Ex.

B

(Doc.

No.

23-3).

Pursuant to a corporate guaranty, Hi-Ridge Transport is
liable to Placid Refining for payment of all indebtedness

2

of Trailer Sales, including interest and late fees, as
well

as

reasonable

attorneys’

fees

and

costs.

In

addition, pursuant to a personal guaranty, McCullough is
liable to Placid Refining for the purchase price of
petroleum products sold and delivered.
Placid Refining perfected service of an alias summons
and amended complaint on both Hi-Ridge Transport and
McCullough on March 28, 2011.
(Doc. Nos. 14 & 15).

See Proofs of Service

The clerk of the court entered

default against Hi-Ridge Transport and McCullough on
April

25,

and

Placid

Refining

submitted

the

instant

motion for default judgment against both defendants on
May 9.

On May 12, the court ordered that “Hi-Ridge

Transport, Inc. and Kendrick Ray McCullough show cause,
if any there be, in writing by May 23, 2011, as to why
Placid Refining Co., L.L.C.'s motion for default judgment
should not be entered against them.”
No.

24).

The

court

“informed

Order at 1 (Doc.

[them]

that

if

they

fail[ed] to respond within the time allowed, the motion

3

will be granted as requested.”
has

come

and

gone

without

Id.
a

The May 23 deadline

response

from

either

defendant.
As stated, Placid Refining requests damages against
Hi-Ridge Transport and McCullough jointly in the amount
of $ 695,142.05, plus post-judgment interest.

Placid

Refining calculates this amount as follows:
Principal amount due to plaintiff

$ 694,692.05

Court costs

450.00

Also as stated, Placid Refining seeks the additional
sum of $ 93,448.33 against Hi-Ridge Transport, plus prejudgment

interest

on

the

principal

amount

accruing

between May 1, 2011 and the date of judgment.

Placid

Refining calculates this amount as follows:
Interest and late fees as of May 1, 2011

30,829.43

Attorneys’ fees as of April 30, 2011

42,618.90

Anticipated future attorneys’ fees to be
incurred in collection of judgment

20,000.00

“[J]udgment of default awarding cash damages [may]
not properly be entered without a hearing unless the
4

amount claimed is a liquidated sum or one capable of
mathematical calculation.

Damages may be awarded only if

the record adequately reflects the basis for award via a
hearing

or

a

demonstration

by

establishing the necessary facts.”

detailed

affidavits

Adolph Coors Co. v.

Movement Against Racism and the Klan, 777 F.2d 1538,
1543-44

(11th

Cir.

citations omitted).

1985)

(internal

quotations

and

Placid Refining has not provided an

accounting for its anticipated future attorneys’ fees,
which it asserts will be incurred in collection of the
judgment, and indeed cannot provide such an accounting at
this

time.

Further,

Placid

Refining

has

cited

no

authority for the proposition that a plaintiff may be
entitled to an award of hypothetical, future attorneys’
fees.

Therefore, the court will not award the $ 20,000

that Placid Refining requests for these fees.
As detailed in the factual background provided above,
Hi-Ridge Transport and McCullough were each served with
an alias summons and amended complaint; failed to respond

5

to the summons and complaint within the time allowed; and
failed to respond timely to an order of this court to
show cause as to why final judgment should not be entered
against them.
that

Placid

Accordingly, this court is of the opinion
Refining's

motion

for

entry

of

default

judgment should be granted and that judgment of default
as to the amount requested minus future attorneys’ fees
should be entered against Hi-Ridge Transport; and that
judgment of default as to the amount requested should be
entered against McCullough.
A judgment will be entered in accordance with this
opinion.
DONE, this the 30th day of June, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE