Louis v. Victory Police Motorcycles LLC et al
MEMORANDUM OPINION that the Court will enter a final judgment against the Defendant, VICTORY POLICE MOTORCYCLES, LLC, and in favor of the Plaintiff, in the amount of $1,154,640.93, a final judgment will be entered contemporaneously with this memorandum opinion. Signed by Judge Liles C Burke on 7/18/2019. (AHI )
2019 Jul-19 AM 08:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
A2Z POWERSPORTS, INC., et al.,
Case No.: 2:16-cv-01019-LCB
This matter is before the Court on the Motion for Default Judgment As To
Defendant Victory Police Motorcycles, LLC (“VPM”) filed by the Plaintiff,
Officer Laquinte Louis (the “Plaintiff” or “Officer Louis”). (Doc. 87). Having
considered the record in this matter and the testimony and exhibits presented by the
plaintiff, the Court enters judgment in favor of the plaintiff and against the
defendant for compensatory and punitive damages as outlined herein below.
I. BACKGROUND AND PROCEDURAL HISTORY
This matter was initially removed from the Circuit Court of Jefferson
County on June 23, 2016. (Doc. 1). 1 On October 10, 2016, Defendant VPM
appeared through counsel and answered the initial complaint. (Doc. 22). On
The case was removed to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. (Doc. 1).
January 16, 2017, the Plaintiff filed his First Amended Complaint. (Doc. 27). On
August 21, 2017, before VPM had filed any answer to the First Amended
Complaint, counsel for VPM moved to withdraw. (Doc. 45). While that motion to
withdraw was pending, the Plaintiff filed his Second Amended Complaint. (Doc.
49). The Second Amended Complaint is the operative complaint in this matter. 2
The Court ordered counsel for VPM to certify that VPM had been made
aware that a limited liability company cannot proceed pro se in federal court.
VPM’s counsel certified that VPM was informed of this fact, in
addition to his earlier statement to the Court that VPM had been served with notice
of counsel’s intent to withdraw from representation. (Id.); see also (Doc. 45).
VPM has never answered the First Amended Complaint or the Second Amended
Complaint. Other than the actions taken by its counsel to withdraw, VPM has not
taken any action at all to respond or otherwise defend this matter since it answered
the initial complaint on October 10, 2016.
On December 21, 2018 the Court directed the Clerk of Court to make an
entry of default as to VPM. (Doc. 83). The Clerk made an Entry of Default as to
VPM on December 26, 2018. (Doc. 84). On February 22, 2019, the Plaintiff filed
a Motion For Default Judgment as to VPM pursuant to Rule 55(b) of the Federal
Two other defendants, Polaris Industries, Inc., and A2Z Powersports, Inc., were named in this lawsuit and have
subsequently been dismissed by stipulation of pro tanto dismissal. Polaris Industries, Inc., was dismissed on
September 20, 2017 (Doc. 51) and A2Z Powersports, Inc., was dismissed on October 19, 2018 (Doc. 73).
Rules of Civil Procedure. (Doc. 87).3
On March 12, 2019, the Court reiterated its
finding that VPM had failed to respond or otherwise defend itself in this matter and
entered a judgment by default against it. (Doc. 88). The Court further ordered that
the Plaintiff appear and present evidence to assist the Court in determining the
appropriate amount of damages. (Id.).
Plaintiff in its Second Amended Compliant demanded a trial by struck jury.
(Doc. 49). Subsequently, plaintiff filed a motion to withdraw this demand pursuant
to Rule 38(d), Federal Rules of Civil Procedure and moved for the Court to strike
the demand against Victory Police Motorcycles, LLC. (Doc. 94). The Court
granted this motion on May 30, 2019 and ordered the jury demand stricken from
the Second Amended Complaint. (Doc. 95). Although, Rule 38(d) provides both
parties must consent to a withdraw of jury demand, the Court finds that the
Defendant by failing to defend and appear in this matter has effectively waived its
right to object to plaintiff’s withdraw of his jury demand.
On April 1, 2019, Plaintiff’s counsel took testimony from the Plaintiff,
introduced exhibits and argument and requested that the Court determine and
Plaintiff in its Second Amended Compliant demanded a jury trial on damages. (Doc. 49). Subseqently, plaintiff
moved for default judgment against Victory Police Motorcycles, LLC and requested that damages be determined by
this Court, thereby withdrawing his demand for a jury trial on damages. (Doc. 87). See also Rule 38 Pursuant to
this request the Court a damage hearing on and reinterated his withdraw by requesting that the Court award damages
in this case.
award compensatory and punitive damages in this matter.
Based upon the
evidence presented, the Court makes the following findings of fact and law.
While courts generally require some notice to be given to defendants
between the time of service of process and entry of a default judgment, see, e.g.,
Capitol Records v. Carmichael, 508 F. Supp. 2d 1079, 1083, n.1 (S.D. Ala. 2007),
Rule 55 explicitly provides for entry of default and default judgment where a
defendant “has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a).4
Furthermore, “[w]hile modern courts do not favor default judgments, they are
certainly appropriate when the adversary process has been halted because of an
essentially unresponsive party.” Flynn v. Angelucci Bros. & Sons, Inc., 448 F.
Supp. 2d 193, 195 (D.D.C. 2006) (citation omitted). The Court is satisfied that
Defendant VPM is on notice of the default proceedings against it. Before it
stopped responding or participating in this matter, VPM had appeared and took the
step of answering the initial complaint. However, VPM has failed to pled or
defend the claims asserted against it in this lawsuit in any way since August 10,
The failure to obtain counsel is by itself a failure to “otherwise defend” for purposes of Rule 55(a). See, e.g.,
Developers Sur. & Indem. Co. v. Lewis Walker Roofing, No. 3:15-cv-655J34-PDB, 2016 U.S. Dist. LEXIS
131533, *38 (M.D. Fla. Jul. 25, 2016) (sanctions for a corporation's failure to appear through counsel may include
the entry of default because nonappearance constitutes failure to “otherwise defend”); Maersk Line v. Phoenix
Agro-Indus. Corp., No. CV-073169, 2009 U.S. Dist. LEXIS 131608, 2009 WL 1505281, at *2 (E.D.N.Y. May 27,
2009) (“It is well settled that ‘[a] corporate defendant's failure to obtain counsel is a failure to 'otherwise defend'
under Rule 55 because a corporation cannot proceed pro se.’”) (internal citations omitted).
2016. Finally, there is evidence in the record demonstrating that VPM is on notice
of the continuing nature of this lawsuit following the withdrawal of VPM’s counsel
and subsequent failure to participate in these proceedings. 5 Accordingly, the Clerk
of Court has made entry of default as to VPM and the Court has entered a
judgment by default against that party as well.
Factual Allegations In Plaintiff’s Complaint Are Admitted By
The Court notes that VPM’s default in this matter is “an admission of the
facts cited in the Complaint.” Capitol Records, 508 F. Supp. 2d at 1082-83. Upon
the entry of a default judgment, the complaint's well pleaded allegations, but not
those pertaining to the amount of damages, are taken as true the same as if they had
been proven by evidence. See, e.g., Boswell v. GumBayTay, No. 2:07-CV-135WKW, 2009 U.S. Dist. LEXIS 45954, *5 (M.D. Ala. Jun. 1, 2009) (citing
Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990)). Once in default, a
defendant cannot later seek to contradict those allegations. See Nishimatsu Constr.
For example, the registered statutory agent for VPM is Michael Schultz. (Doc. 77-1). Mr. Schultz was designated
as the 30(b)(6) representative of another entity defendant in this matter, A2Z Powersports, Inc., and was deposed in
that capacity as recently as August 2018. (Id.). Further, the Court has deemed admitted certain Requests for
Admission that were unanswered by VPM. Those Requests for Admission were introduced into evidence at the
hearing on the Plaintiff’s motion for default judgment held before this Court on April 1, 2019. Among the matters
deemed admitted by VPM are that Michael Schultz was registered agent for VPM at the time he was deposed in
August 2018, and thus, VPM was aware of the continuing nature of this lawsuit.
Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).6
Accordingly, the Court will take a moment to address the allegations in the Second
Amended Complaint before addressing the evidence as to damages.
In his Second Amended Complaint, the Plaintiff alleges that “Defendant
Victory was and is engaged in the business of manufacturing, fabricating,
designing, assembling, distributing, selling, inspecting, servicing, repairing,
marketing, warranting, retailing, wholesaling and advertising police motorcycles
and, more specifically, a certain subject 2014 Victory Police Motorcycle, VIN
The Plaintiff alleges the subject
motorcycle’s design defects included an unsafe rear suspension system which
failed at high speeds, and a defective and unsafe design that required consumers to
determine appropriate settings for the rear suspension system. (Id.). He further
alleges the Defendants, including VPM, “knew or, in the exercise of reasonable
care, should have known that said motorcycle and all of its component parts would
be used without inspection for defects in its parts, mechanisms or design, for use in
the State of Alabama and elsewhere by consumers.” (Id.). VPM did this without
issuing any warnings to the Plaintiff or the City of Birmingham about the
Decisions of the former Fifth Circuit filed prior to October 1, 1981, constitute binding precedent in the Eleventh
Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
The Plaintiff and his employer, the City of Birmingham, relied on VPM’s
representations that the subject motorcycle was safe when the City of Birmingham
decided to purchase it and others like it. (Id.). The subject motorcycle was not
safe, however -- a fact which VPM knew and concealed from the Plaintiff and the
City of Birmingham. (Id.). The Plaintiff was riding the subject motorcycle when it
wrecked due to the defective design, and the Plaintiff was ejected from the
motorcycle. (Id.). He was taken to the hospital and treated for his injuries. (Id.).
The Plaintiff states the following claims for relief against VPM: (1) negligence and
wantonness; (2) violation of the Alabama Extended Manufacturers’ Liability
Doctrine (“AEMLD”); (3) breach of implied warranty; (4) fraudulent concealment
and suppression; and (5) negligent misrepresentation. (Doc. 49).
Based upon the complaint and admitted factual allegations coupled with the
testimony and evidence presented at the hearing on damages, the Court hereby
finds that the Defendant’s negligent and wanton design and manufacture of the
motorcycle in question along with the failure to warn proximately caused the
Regarding the award of damages in a default judgment, Rule 55 provides as
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum
that can be made certain by computation, the clerk—on the plaintiff's
request, with an affidavit showing the amount due—must enter
judgment for that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor an
(2) By the Court. In all other cases, the party must apply to the court
for a default judgment. A default judgment may be entered against a
minor or incompetent person only if represented by a general
guardian, conservator, or other like fiduciary who has appeared. If the
party against whom a default judgment is sought has appeared
personally or by a representative, that party or its representative must
be served with written notice of the application at least 7 days before
the hearing. The court may conduct hearings or make referrals—
preserving any federal statutory right to a jury trial—when, to enter or
effectuate judgment, it needs to: (A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of any
allegation by evidence; or (D) investigate any other matter.
Fed. R. Civ. P. 55(b).
Following entry of default, the Court held an evidentiary hearing to
determine the appropriate amount of damages in this case. The complaint requests
compensatory and punitive damages, see (Doc. 49), and the Court will address
each in turn.
At the April 1, 2019 hearing, the Plaintiff presented arguments and evidence
in the form of exhibits and the testimony from Officer Louis. Officer Louis
testified to his injuries, which are also documented in his medical records and
photographs. Officer Louis’s physical injuries included bleeding skin rashes, three
separate surgeries, scars, and permanent loss of use in his hand. Officer Louis
presented photographs of the motorcycle wreck and of his own condition while he
was hospitalized. He also testified to the continuing loss of use of his hand. For
example, he has difficulty performing simple tasks like opening cans and jars at
home, and has to ask his young daughter to help him.
In terms of accrued damages, the Plaintiff presented evidence of the City of
Birmingham’s lien for medical treatment and lost wages benefits Officer Louis
received. The City’s lien for medical treatment amounted to $109,319.77. The
City of Birmingham also paid $30,183.89 in lost wages benefits to Officer Louis,
who testified that this amount reflects two thirds of his actual lost wages. When
the additional one third of lost wages in the amount of $15,137.27 is added to the
two thirds the City of Birmingham paid and was entitled to recover, the Plaintiff’s
lost wages damages amount to $45,321.16. In all, the Plaintiff’s exhibits and
testimony established $154,640.93 in medical expenses and lost wages.
The Plaintiff also testified extensively to his mental anguish, emotional
distress, and pain and suffering. This included records, admitted under seal, which
support Officer Louis’s testimony that he has had to seek formal mental health
treatment as a result of the motorcycle wreck.
Specifically, Officer Louis
presented evidence that he has been diagnosed with generalized anxiety disorder
and post-traumatic stress disorder.
Officer Louis gave several concrete examples of the ways in which the
trauma of the wreck has played out in his personal and professional life. For
example, Officer Louis testified that he finds it difficult to stand loud noises; he
becomes unusually upset and finds it difficult to cope. He stated that when he has
to talk about the wreck, he becomes emotional and it takes a significant amount of
time for him to recover his composure. This fact was visible to the Court during
the course of Officer Louis’s testimony.
At the time of his wreck, Officer Louis was not just a motor pool officer but
was also a motorcycle instructor who trained other riders. Officer Louis does not
ride motorcycles for the City of Birmingham anymore and attributes this to the
effects of his wreck. Even so, he has difficulty at work because he is still assigned,
as he was before the wreck, to respond to traffic accidents. This frequently
involves responding to fatal wrecks, which gives rise to emotional episodes in
which Officer Louis has to take a break and finds it difficult to think or remain
Officer Louis becomes upset when there are loud noises and finds it
impossible to travel on the portion of Interstate 459 where the wreck occurred; he
and his wife have to go out of their way when traveling. Officer Louis also
testified that he has recurring nightmares and has at times become unwittingly
violent while sleeping in bed with his wife. This, he testified, has caused difficulty
in his marriage among the other stressors stemming from the wreck and its
It is clear that the effect of the wreck underlying this matter has had a deep
and intense impact on his day-to-day both at home and at work. The Court is
convinced that his life has been changed by the effects of the wreck and the mental
and physical wounds he has sustained. Some wounds have healed, some may heal
with time; some, clearly, will not.
In sum, the Plaintiff requested $154,640.93 in medical expenses and lost
wages and an additional $500,000.00 in compensation for his past, present, and
future pain and suffering as established through his testimony and other evidence.
Based upon the findings described herein, the Court finds this amount appropriate
and will enter judgment for compensatory damages in the total amount of
Punitive damages are “intended to punish the defendant and to deter future
wrongdoing.” Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424,
432 (2001). Under Alabama law, a plaintiff is entitled to punitive damages “in a
tort action where it is proven by clear and convincing evidence that the defendant
consciously or deliberately engaged in oppression, fraud, wantonness, or malice
with regard to the plaintiff.” Ala. Code § 6-11-20 (1975). In the Goldsmith case,
the Eleventh Circuit indicated that courts are to evaluate the following “three
guideposts” in considering punitive damages awards: (1) the degree of
reprehensibility of the defendant's misconduct; (2) the ratio between compensatory
damages (representing the actual or potential harm suffered by the plaintiff) and
the punitive damages award; and (3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized or imposed in comparable
cases. Goldsmith, 513 F.3d at 1282 (citing Gore, 517 U.S. at 575); accord Myers
v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1218 (11th Cir. 2010). The Court will
consider each factor of the Goldsmith guideposts in evaluating the appropriateness
of punitive damages in this case under Alabama law and in relation to the
compensatory damages awarded in this matter.
Reprehensibility of Conduct
The “dominant” guidepost under Goldsmith is the reprehensibility of the
defendant’s conduct, which evaluates the following issues: (1) whether the harm
caused was physical as opposed to economic; (2) whether the tortious conduct
evidenced an indifference to or a reckless disregard of the health or safety of
others; (3) whether the target of the conduct was financially vulnerable; (4)
whether the conduct involved repeated actions or was an isolated incident; and (5)
whether the harm was the result of intentional malice, trickery, or deceit, or mere
Goldsmith, 513 F.3d at 1283 (citing W&O, 213 F.3d at 614-15).
Evidence tending to prove a company policy or practice of tortious conduct can
support a sizeable punitive damages award.” Id. (citing W&O, 213 F.3d at 615).
Each factor counsels an award of punitive damages in this matter. As to the
first factor, it is clear Officer Louis suffered both physical and economic harm.
The physical harm caused to Officer Louis is evident from the photographs and
testimony he presented to the Court. The evidence shows that Officer Louis had to
be rescued from the wreck site and was hospitalized. He had extensive and bloody
road burns where flesh was stripped from his skin.
He underwent multiple
surgeries and has sustained an injury to his hand that has noticeably weakened it;
he testified there is no likelihood he will regain full use of his hand.
As to the second factor, the allegations admitted by virtue of VPM’s default
demonstrate that VPM acted with indifference or reckless disregard (or worse)
regarding the health or safety of others. See, e.g., (Doc. 49 at p. 48) (VPM had
exclusive access to material information about the “wobble” or “weave” risks of
the subject motorcycle, and Defendants knew that neither Plaintiff Louis nor his
employer could reasonably discover that information). The Court further notes the
expert opinion of Dr. Mark Ezra, whose report is in evidence and who opined that
VPM did not conduct “any engineering testing of the police vehicle they designed
and assembled over any meaningful speed range likely to be used in police work,
nor did they employ or consult with competent engineers.” See Report of Dr.
Mark Ezra, at p.11. As Dr. Ezra put it, “[t]his same, untested, motorcycle was then
specifically delivered to the Birmingham City police department as suitable and
reasonably safe for the police officers of that police department to operate in
normal and pursuit police operations,” making Officer Louis an unwitting test rider
of an untested vehicle. Id.
As to the third factor, regarding the financial vulnerability of the Plaintiff,
the result is unclear. On the one hand, Officer Louis remains employed with the
City of Birmingham since the wreck. On the other, it is clear that his medical
expense damages alone amount to more than a year’s salary and that his future
medical issues will continue for the rest of his life. Therefore, the Court finds that,
relative to the amount of economic harm he suffered in addition to the physical
injuries, this factor weighs in favor of an award of punitive damages.
As to the fourth factor, which looks to whether the defendant’s actions were
repeated or singular, the Court notes that sold three motorcycles to the City of
Birmingham -- Officer Louis’s, and two others. The additional motorcycles were
taken off the road following complaints from other officers about their safety and
operation. See Report of Dr. Mark Ezra, at p.11. Thus, this factor, too, weighs in
favor of a punitive damages award.
As to the fifth factor, which looks to whether the defendant’s conduct
evidences malice, deceit, or trickery, the Court again notes the admitted allegations
contained in the Plaintiff’s Second Amended Complaint. See (Doc. 49 at p. 50)
(alleging VPM’s fraudulent concealment of the facts that (a) prior testing revealed
that VPM motorcycles experienced a high speed “wobble” or “weave;” and (b)
VPM had not conducted any studies establishing the safety of its motorcycle
before selling it to the City of Birmingham). Accordingly, the fifth factor weighs
in favor of awarding punitive damages.
In all, the Court finds that the “reprehensibility” factors weigh in favor of a
finding that VPM’s conduct supports a punitive damages award.
Ratio Between Compensatory And Punitive Damages
The Supreme Court “has recognized that, ‘in practice, few awards exceeding
a single-digit ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process.’” Bogle v. McClure, 332 F.3d 1347, 1361 (11th
Cir. 2003) (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425
(2003)). Conversely, ratios within the single digits do not implicate due process
concerns and are acceptable under the second Goldsmith “guidepost.” Put another
way, where it is demonstrated that a defendant in default has shown a “serious
disregard for the consequences of [its] action,” punitive damages are appropriate in
an amount at least equal to the amount of compensatory damages. EEOC v. Nuñez,
Inc., 2011 U.S. Dist. LEXIS 159963, *103-04 (N.D. Ga. Feb. 27, 2011)
(considering the “instructive” cases of BMW of N. Am. v. Gore, 517 U.S. 559
(1996) and Goldsmith, 513 F.3d 1261 in evaluating the appropriateness of punitive
damages, as compared to compensatory damages). Here, the punitive damages
award the Plaintiff has requested is less than the compensatory damages, meaning
that the ratio of compensatory damages to punitive damages would be less than 1:1
if the Plaintiff’s request were granted in full. Thus, the “ratio” factor is not at issue
in this matter.
Difference Between Award and Comparable Cases
The award requested in this matter is within amounts entered in comparable
cases. As to negligence and wantonness, for example, the Court notes that in
Demus Smith v. Eduardo Gil, et al., No. 01-CV-2012-903998 (Jefferson Cty. Cir.
Ct.), the state trial court entered default judgments -- including punitive damages in
the amount of $500,000 as to one defendant and $1,000,000 as to another -- for
claims of negligence and wantonness brought by a City of Birmingham police
officer who was injured by a motor vehicle. See id., Order of Final Judgments
(Doc. 401). Such verdicts have been reached by juries as well. See, e.g., Brian
Smith v. Alan Nelson, et al., No. 03-CV-2004-000425 (Montgomery Cty. Cir. Ct.)
(motorcycle rider awarded $1,500,000 in compensatory and punitive damages
following non-fatal vehicle wreck). Regarding the Plaintiff’s AEMLD claim, this
court has previously entered a punitive damages award in an amount nine times
that of the compensatory damages award. See McClain v. Metabolife Int'l, Inc.,
259 F. Supp. 2d 1225 (N.D. Ala. 2003). And certainly there are examples of fraud
and misrepresentation cases which have resulted in punitive damages awards well
in excess of what the Plaintiff seeks here. See, e.g., Abrams v. Stroud, No. 2:12cv-177-MHT, 2013 U.S. Dist. LEXIS 173645, *20-21, 2013 WL 6511908 (M.D.
Ala. Dec. 12, 2013), the Court entered a judgment by default that included punitive
damages in the amount of $5,481,792.18, which in that matter amounted to three
times the aggregate compensatory damages. The Court finds that an award of
punitive damages in the amount of $500,000.00 would not be out of step with
amounts entered in comparable cases.
This is true whether the judgments
considered are by default or by jury verdict, and whether they are rendered in state
or federal court.
In light of the foregoing considerations as to the factors to be considered by
the Court when evaluating punitive damages, the Court finds that punitive damages
are appropriate in this case.
The Court further finds that the “guideposts”
announced by the Eleventh Circuit in the Goldsmith case all weigh in favor of the
amount requested by the plaintiff.
For the reasons stated above, the Court finds that the compensatory and
punitive damages requested by the plaintiff are justified by the pleadings and
evidence in this case. The Court further finds that the amounts the plaintiff seeks
are appropriate and in keeping with the law of this Circuit and the State of
Accordingly, the Court will enter a final judgment against the
Defendant, VICTORY POLICE MOTORCYCLES, LLC, and in favor of the
Plaintiff, LAQUINTE LOUIS, in the amount of $1,154,640.93, representing
$654,650.93 in compensatory damages and $500,000.00 in punitive damages.
DONE and ORDERED this July 18, 2019.
LILES C. BURKE
UNITED STATES DISTRICT JUDGE
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