Alex N. Sill Company v. Carter Bros. Mfg. Co., Inc. (JOINT ASSIGN)(MAG2)

Filing 14

OPINION. Signed by Honorable Judge Myron H. Thompson on 3/13/2017. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ALEX N. SILL COMPANY,
Plaintiff,
v.
CARTER BROS. MFG. CO.,
INC.,
Defendant.

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CIVIL ACTION NO.
2:16cv1007-MHT
(WO)

OPINION
Plaintiff Alex N. Sill Company filed this lawsuit
against defendant Carter Bros. Mfg. Co., Inc., bringing
a state-law claim for breach of contract and seeking a
declaratory judgment.

Jurisdiction is proper pursuant

to 28 U.S.C. § 1332 (diversity).

This lawsuit is now

before the court on Sill Company’s motion for default
judgment.

For the reasons below, the motion will be

granted.
On January 10, 2017, Carter Bros. was served the
summons and complaint by process server, and was served
with a copy of the amended complaint by U.S. Mail on

January 13, 2017.

More than 21 days have passed since

Carter Bros. was served with the summons and complaint
and with the amended complaint.

Carter Bros. has not

filed an answer or other responsive pleading within the
time specified by Fed. R. Civ. P. 12(a)(1).
Sill Company applied for entry of default against
Carter Bros. on February 15, 2017, and the clerk of
court entered the requested default.

Sill Company then

filed the pending motion for default judgment.
In the motion, Sill Company requests a judgment (1)
finding its contract with Carter Bros. to be valid and
binding; (2) granting judgment in its favor and against
Carter Bros. in the sum of $ 250,939.04, plus costs;
(3) finding it is entitled to the first $ 250,939.04 of
any

distribution

liquidation

made

to

proceeding,

Carter
or

to

Bros.
any

in

a

amount

pending
of

the

$ 250,939.04 that remains owing at the time of such
distribution;

and

(4)

for

any

other,

further

or

different relief to which it may be entitled.
On February 22, the court ordered that the parties
2

show cause, if any there be, in writing by March 8 as
to why the motion for default judgment should not be
granted.

In the order, the court informed Carter Bros.

that if it failed to respond within the time allowed,
the

court

motion.

would
The

grant

the

deadline

relief

has

come

requested
and

in

gone

the

without

response.
Attached

to

the

default-judgment

motion

is

the

signed contract between the parties, an invoice from
Sill Company to Carter Bros., and the declaration of
Michael Perlmutter, President and General Counsel for
Sill

Company,

factual

discussing

background.

the

documents

Perlmutter

and

attested

to

other
the

following facts:
• Sill

Company

entered

into

a

contract

with

Carter Bros. in 2010 to assist in the appraisal
and preparation of fire-loss insurance claims
with

Lumberman’s

Underwriting

Alliance;

the

insurance claim stemmed from a fire at Carter
Bros.'s manufacturing facility.
3

• Under the contract’s terms, Carter Bros. was
required to pay Sill Company for its work out
of the "first dollars" it received from the
insurance company on its fire-loss claim.
• Sill Company performed claims preparation and
other services pursuant to the contract for a
total amount of $ 259,989.04 in costs and fees.
• In

Carter

Brothers

Underwriting

Mfg.

Alliance,

Co.

No.

v.

Lumbermen's

2:11-cv-251

(M.D.

Ala.), Carter Bros. won a jury verdict against
Lumberman’s

on

$ 13,653,415.00.

the

fire-damage

claim

for

Sill Company provided expert

testimony in the trial.
• In 2012, Lumbermen's made payments under the
policy totaling $ 7,122,439.56 to a number of
Carter Bros.'s lienholders.
• Carter Bros. paid Sill Company $ 9,050.00.

It

has not disputed the amount of money it owes
Sill Company under the contract.
4

• The total remaining amount due to Sill Company
under the contract is $ 250,939.04.
Sill

Company

also

submitted

with

its

motion

a

notice of the liquidation of Lumberman’s, issued by the
Circuit

Court

of

Cole

County,

Missouri.

The

notice

gives claimants until May 24, 2017, to submit proof of
claims against Lumberman’s.

Sill Company wishes to

submit a proof of claim for the amount Carter Bros.
owes

it
As

in

relation

detailed

in

the

to

the

factual

parties’

contract.

background

discussed

above, Carter Bros. was served with both the summons
and

complaint;

failed

to

respond

to

the

complaint

within the time allowed; and failed to respond to an
order

of

judgment

this

court

should

Furthermore,

the

to

not
court

show

cause

as

to

why

final
it.

be

entered

against

has

examined

the

contract

between the parties and the other evidence submitted,
and finds that the contract is valid and binding and
that Sill Company is entitled to be paid $ 250,939.04
in

accordance

with

the

contract.
5

Accordingly,

this

court is of the opinion that Sill Company’s motion for
entry of default judgment should be granted.
An appropriate judgment will be entered.
DONE, this the 13th day of March, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE