Center Capital Corporation v. Q.E.S.T., Inc. et al

Filing 51

ORDER granting 50 Motion for Default Judgment. DEFAULT JUDGMENT is entered against Defendant Tim Phillips and in favor of Plaintiff, in the amount of $164,155.91 for Defendant Phillips' failure to plead or otherwise defend this action. Signed by Judge Kristi K. DuBose on 2/15/12. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CENTER CAPITAL CORPORATION,
Plaintiff,

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v.
TIM PHILLIPS,
Defendant.

CIVIL ACTION NO. 09-157-KD-M

ORDER
This matter is before the Court on Plaintiff=s Rule 55(b) Motion for Default Judgment as
to Defendant Tim Phillips (“Phillips”) (Doc. 50). Plaintiff seeks entry of a default judgment
against Defendant Phillips in the amount of $164,155.91 on the grounds that said defendant has
failed to answer, respond or otherwise plead.
I.

Background
On March 23, 2009, Plaintiff filed the instant AComplaint for Money Damages@ against

Defendants Q.E.S.T., Inc., Chris Collum and Tim Phillips. (Doc. 1). Plaintiff alleged federal
diversity jurisdiction and asserted breach of contract claims against these Defendants with regard
to a Master Loan and Security Agreement executed between Plaintiff and Defendant Q.E.S.T.
(and a subsequently executed Amendment and Restatement of Loan/Lease Agreement) and two
Continuing Guaranty contracts executed between Plaintiff and Defendants Collum and Phillips.
(Doc. 1). On March 24, 2009, a Notice of Summons was issued to Defendant Phillips (and the
other defendants). 1 (Doc. 5). On April 20, 2009, the Summons to Defendant Phillips was
returned unexecuted (Doc. 7). On April 21, 2009, an Alias Summons was issued to Defendant

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The other defendants Chris Collum and Q.E.S.T., Inc. are no longer in this case. (Docs.
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Phillips. (Doc. 10). On May 18, 2009, the Summons to Defendant Phillips was returned
unexecuted. (Doc. 14). On May 21, 2009, a second Alias Summons was issued to Defendant
Phillips. (Doc. 16).
On July 15, 2009, Plaintiff filed an application for entry of default and motion for default
judgment against Defendant Phillips due to his failure to plead or otherwise defend. (Docs. 24,
25).

On July 17, 2009 Defendant Phillips filed a Suggestion of Bankruptcy.

(Doc. 26).

Accordingly, on July 23, 2009, this action was stayed as to Phillips due to the bankruptcy
proceedings. (Doc. 27). On September 16, 2011, this Court ordered Plaintiff to file a status
report regarding Defendant Phillips’ bankruptcy proceedings. (Doc. 33). Plaintiff notified the
Court that Defendant Phillips’ bankruptcy proceedings had been dismissed on July 28, 2010 for
failure to make payments. (Doc. 35). The Court thus ordered Defendant Phillips to show cause
as to why the case should not be reinstated against him. (Docs. 37, 39, 40). Defendant Phillips
failed to file any response and the case was reinstated against him on December 13, 2011.
(Docs. 41, 42). On December 22, 2011, Defendant Phillips was ordered by Magistrate Judge
Milling to file a response to Plaintiff’s Complaint (answer or move to dismiss) by January 12,
2012, and cautioned that his failure to do so may result in a renewed motion for default against
him. (Doc. 43). On January 19, 2012, Magistrate Judge Milling ordered Plaintiff to show
cause as to why it had not submitted an application for entry of default against Phillips due to his
failure to respond to the complaint.

(Doc. 44).

On January 20, 2012, Plaintiff filed an

application for entry of default against Defendant Phillips, due to his failure to plead or
otherwise defend against the Complaint. (Doc. 45). On January 24, 2012, the Clerk entered a

28, 30, 31, 49). Phillips is the only remaining defendant.
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default against Philips. (Doc. 47). Presently before the Court is Plaintiff’s motion for default
judgment as to Phillips, due to his failure to respond or otherwise defend in this action. (Doc.
50).
II.

Discussion
Rule 55 of the Federal Rules of Civil Procedure provides, in relevant part, as follows:
(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff's claim against a defendant is for a sum
certain or for a sum which can by computation be made certain, the clerk upon
request of the plaintiff and upon affidavit of the amount due shall enter judgment
for that amount and costs against the defendant, if the defendant has been
defaulted for failure to appear and is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default
shall apply to the court therefor; but no judgment by default shall be entered
against an infant or incompetent person unless represented in the action by a
general guardian, committee, conservator, or other such representative who has
appeared therein. If the party against whom judgment by default is sought has
appeared in the action, the party (or, if appearing by representative, the party's
representative) shall be served with written notice of the application for judgment
at least 3 days prior to the hearing on such application. If, in order to enable the
court to enter judgment or to carry it into effect, it is necessary to take an account
or to determine the amount of damages or to establish the truth of any averment
by evidence or to make an investigation of any other matter, the court may
conduct such hearings or order such references as it deems necessary and proper
and shall accord a right of trial by jury to the parties when and as required by any
statute of the United States.

FED.R.CIV.P. 55.
A review of the record reveals that Defendant Phillips has notice of the default
proceedings against him. Defendant Phillips has been provided with copies of the relevant court
orders as well as Plaintiff’s application for entry of default, the Clerk’s the entry of default and
Plaintiff’s motion for default judgment. See supra. As of the date of this Order, Defendant
Phillips has wholly failed to appear or otherwise defend this action (apart from a limited filing
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notifying the Court of his now defunct bankruptcy status).
In the Complaint, Plaintiff asserted one (1) count of breach of contract/guaranty against
Defendant Phillips, alleging that he executed a Continuing Guaranty with the Master Loan and
Security Agreement (as amended) between Plaintiff and Defendant Q.E.S.T., but defaulted under
same by failing to make the requisite payments. (Doc. 1 at 7-8, 9-22). Plaintiff asserted also,
that it has fully performed under the Master Loan Agreement (as amended) and thus has fully
performed under the Continuing Guaranty. (Id. at 8). Additionally, according to a Vice-President
at Plaintiff Center Capital Corporation, “Phillips is responsible to [Plaintiff]…for the
$164,155.91 in damages, plus cost, under the terms of the Continuing Guaranty.” (Doc. 50 at 5
(Aff. of J.Napierkowski)). See also Doc. 29 at 10-16 (Aff. of J.Napierkowski)). Accordingly,
based on the Court=s review of the record, it is hereby ORDERED that Plaintiff’s motion (Doc.
50) is GRANTED such that a DEFAULT JUDGMENT is entered against Defendant Tim
Phillips and in favor of Plaintiff, in the amount of $164,155.91 for Defendant Phillips’ failure to
plead or otherwise defend this action.2
A separate Final Judgment shall issue in conjunction with this Order.
DONE and ORDERED this the 15th day of February 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

While the Napierkowski Affidavit states “plus cost,” Plaintiff has neither moved for costs nor
attorneys’ fees in the motion for default judgment and thus, they are not at issue here.

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