Anderson v. Annies Supermarket
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/12/2013. (JLC)
2013 Feb-12 PM 02:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DON ANDERSON, individually and )
on behalf of all others similarly
) Case No.: 1:12-CV-3415-VEH
Introduction and Procedural History
Plaintiff Don Anderson (“Mr. Anderson”) initiated this Electronic Fund
Transfer Act (“EFTA”) case against Defendant Annies Supermart (“Supermart”) on
September 21, 2012, individually and on behalf of all others similarly situated. (Doc.
1 at 1).
The court file reflects that service of the summons and complaint was
perfected on Supermart on October 11, 2012. (Doc. 5 at 3).
On November 13, 2012, the clerk entered a default (Doc. 8) due to Supermart’s
failure to respond to Mr. Anderson’s complaint after being duly served. (Id. at 1).
Pending before the court is a Motion for Default Judgment as to Defendant Supermart
(the “Motion”) (Doc. 9) filed by Mr. Anderson on November 14, 2012. The Motion
seeks to have a default judgment entered by the court in favor of Plaintiff and set “a
separate hearing to determine the actual damages, punitive damages and other relief
due Plaintiff.”1 (Id. at 2).
On November 28, 2012, the court entered an order (Doc. 10), requiring
Supermart to show cause no later than December 7, 2012, why the Motion should not
be granted. The clerk sent this show cause order to Supermart via regular and
certified mail on November 28, 2012. (See CM/ECF margin entry dated Nov. 28,
Supermart tried unsuccessfully to respond to the first show cause order on
December 7, 2012. The court struck this response because it was authored by a nonlawyer. (Doc. 14). The court issued a second show cause deadline of January 7,
Supermart again attempted to respond to the show cause deadline through a
non-lawyer. The court struck this second response and extended Supermart’s show
cause deadline until January 31, 2013. (Doc. 17). This most recent show cause
Mr. Anderson has demanded a jury trial. (Doc. 1 at 11). The EFTA
indicates that a court, and not a jury, is responsible for determining any award of
damages. See 15 U.S.C. § 1693m(b) (“In determining the amount of liability in
any action under subsection (a) of this section, the court shall consider . . . .”)
(emphasis added). The EFTA also does not identify punitive damages as an item
recoverable by either an individual plaintiff or a class.
deadline has passed without a legally valid response from Supermart.
Standard on Default Judgment
“When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules and that fact is made
to appear by affidavit or otherwise, the clerk shall enter the party’s default.” Fed. R.
Civ. P. 55(a). However, entry of default under Rule 55(a) does not entitle a party to
his requested relief. Either the clerk or the court must enter a default judgment under
Rule 55(b). Here, the court, and not the clerk, acts pursuant to Rule 55(b)(2).
Generally, the entry of a default judgment is committed to the discretion of the
district judge. Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977).2 The factual
allegations of a well-pleaded complaint are taken as true; hence, the court must decide
if these accepted facts state a cause of action for which relief can be granted.
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1987);
Nishimatsu Const. Co., Ltd. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir.
1975) (“There must be a sufficient basis in the pleadings for the judgment entered.”)
(footnote omitted); Descent v. Kolitsidas, 396 F. Supp. 2d 1315, 1316 (M.D. Fla.
2005) (same). When the amount of damages due is uncertain, an evidentiary hearing
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981.
is often required to determine the sum the defaulting defendant must pay. S.E.C. v.
Smyth, 420 F.3d 1225, 1231-32 (11th Cir. 2005). On the other hand, if a specific sum
is sought, a hearing may not be necessary.
As explained by Judge William H. Steele of the United States District Court
for the Southern District of Alabama regarding default judgments:
The law is clear, however, that Lacey’s failure to appear and the
Clerk’s subsequent entry of default against her do not automatically
entitle plaintiffs to a default judgment. Indeed, a default is not “an
absolute confession by the defendant of his liability and of the plaintiff's
right to recover,” but is instead merely “an admission of the facts cited
in the Complaint, which by themselves may or may not be sufficient to
establish a defendant's liability.” Pitts ex rel. Pitts v. Seneca Sports,
Inc., 321 F. Supp. 2d 1353, 1357 (S.D. Ga. 2004); see also Descent v.
Kolitsidas, 396 F. Supp. 2d 1315, 1316 (M.D. Fla.2005) (“the
defendants’ default notwithstanding, the plaintiff is entitled to a default
judgment only if the complaint states a claim for relief”); GMAC
Commercial Mortg. Corp. v. Maitland Hotel Associates, Ltd., 218 F.
Supp. 2d 1355, 1359 (M.D. Fla. 2002) (default judgment is appropriate
only if court finds sufficient basis in pleadings for judgment to be
entered, and that complaint states a claim). Stated differently, “a default
judgment cannot stand on a complaint that fails to state a claim.”
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir.
Virgin Records America, Inc. v. Lacey, 510 F. Supp. 2d 588, 591-92 (S.D. Ala. 2007)
The court has reviewed the complaint and it appears that Mr. Anderson has
averred sufficient facts that, due to their admission as a result of Supermart’s failure
to appear after being duly served, judgment is due to be entered in favor of Mr.
Anderson as to EFTA liability. More specifically, in his complaint, Mr. Anderson
alleges that Supermart “is located at 720 Quintard Avenue, Anniston, Alabama
36201” and “is an automated teller machine operator” that is covered under the
EFTA. (Doc. 1 ¶¶ 15, 16; see also id. ¶ 19).
Mr. Anderson contends that on or about July 11, 2012, he “made an electronic
fund transfer at [Supermart’s] ATM” and that Supermart “charged [him] a fee of
$3.00 in connection with [that] transaction.” (Id. ¶¶ 17, 17(a)). Mr. Anderson further
asserts that at the time of the transaction, he “did not maintain any accounts with
[Supermart].” (Id. ¶ 19).
Mr. Anderson also alleges that “there was no notice posted ‘on or at’ the ATM
operated by [Supermart] apprising consumers that a fee would be charged for use of
the ATM.” (Doc. 1 ¶ 20). Finally, Mr. Anderson maintains that, because Supermart
“did not post the required notice, it was not permitted to charge a usage fee to [him]
and other class members.” (Id. ¶ 21).
The complaint also contains separate sections on class allegations (Doc. 1 ¶¶
22-35) and Mr. Anderson’s substantive claim under the EFTA. (Id. ¶¶ 36-44). Mr.
Anderson’s requested relief includes an order certifying a class, an award of statutory
damages to him and the members of the class, costs of suit, and reasonable attorney’s
fees. (Doc. 1 at 10-11).
The court finds, based upon the admitted allegations contained in Mr.
Anderson’s complaint (Doc. 1), that Supermart is liable to him under the EFTA
pursuant to 15 U.S.C. §§ 1693b(d)(3),3 1693m.4 However, the court declines to enter
15 U.S.C. § 1693b(d)(3) addresses “fee disclosures at automated teller
machines” and prohibits such charges to consumers unless certain requirements
15 U.S.C. § 1693m provides in part:
(a) Individual or class action for damages; amount of award
Except as otherwise provided by this section and section 1693h of
this title, any person who fails to comply with any provision of this
subchapter with respect to any consumer, except for an error resolved
in accordance with section 1693f of this title, is liable to such
consumer in an amount equal to the sum of-(1) any actual damage sustained by such consumer as a
result of such failure;
(2)(A) in the case of an individual action, an amount not
less than $100 nor greater than $1,000; . . . .
(b) Factors determining amount of award
In determining the amount of liability in any action under subsection
(a) of this section, the court shall consider, among other relevant
factors-(1) in any individual action under subsection (a)(2)(A) of
any type of judgment regarding Mr. Anderson’s class allegations due to the
underdeveloped nature of the record and Mr. Anderson’s failure to establish
satisfaction of Rule 23’s preliminary and procedural requirements.5 Also, because the
damages as presented by Mr. Anderson are not “for a sum certain or a sum that can
be made certain by computation,” see Fed. R. Civ. P. 55(b)(1), the case will be set for
a bench trial to determine Mr. Anderson’s damages only.6
Accordingly, the Motion is due to be granted with leave for Mr. Anderson to
prove his damages at a bench trial. By separate order, the court will set this case for
this section, the frequency and persistence of
noncompliance, the nature of such noncompliance, and
the extent to which the noncompliance was intentional; .
15 U.S.C. § 1693m(a)-(b).
In particular, as the movant, Mr. Anderson has not shown how awarding
class-wide relief in the context of a default is ever appropriate under Rules 23 and
Although Mr. Anderson has demanded a jury trial in his complaint (Doc. 1
at 11), whether the EFTA actually provides a litigant with a right to a jury trial is
not entirely clear to the court. See, e.g., n.1, supra. In particular, the court has
been unable to locate a reported federal court decision that discusses the
appropriateness of jury trials vel non under the EFTA. Additionally, in his
Motion, Mr. Anderson has requested a hearing on damages as opposed to a jury
trial. (Doc. 9 at 2). Therefore, the court concludes that, under these circumstances,
conducting a bench trial on damages is the appropriate course of action.
a bench trial solely on the issue of Mr. Anderson’s damages. The court also will enter
a separate order of partial final judgment in favor of Mr. Anderson and against
Supermart under Rule 54(b).
DONE and ORDERED this 12th day of February, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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