Cahaba Disaster Recovery, LLC v. Eagle Tugs, LLC
ORDER that Plaintiff's renewed 18 Motion for Default Judgment against Defendant Eagle Tugs, LLC, in the amount of $172,687.50, is GRANTED. Signed by Judge Kristi K. DuBose on 11/1/2011. copies to parties. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAHABA DISASTER RECOVERY, LLC,
EAGLE TUGS, LLC, d/b/a EAGLE
CIVIL ACTION NO. 11-00161-KD-B
This matter is before the Court on the Plaintiff Cahaba Disaster Recovery, LLC
(“Plaintiff”)’s Rule 55 renewed motion for default judgment (Doc. 18), against Defendant Eagle
Tugs, LLC, d/b/a Eagle Boat Companies (“Eagle Tugs”), on the grounds that said defendant has
failed to plead, answer or otherwise defend in this case.
Plaintiff’s original motion for default judgment was denied on October 26, 2011 due, in
part, to deficient service of process on Eagle Tugs. As detailed in the Court’s Order, the Clerk’s
entry of Default against Eagle Tugs on August 10, 2011 (Doc. 13), which was based upon this
deficient proof of service, was vacated on October 26, 2011.
Rule 55 sets out a two-step procedure for obtaining a default judgment. First, when a
defendant fails to plead or otherwise defend the lawsuit, the clerk of court is authorized to enter a
clerk's default. Fed.R.Civ.P. 55(a). Second, after entry of the clerk's default, if the plaintiff's
claim is not for a sum certain and the defendant is not an infant or an incompetent person, the
court may enter a default judgment against the defendant for not appearing or defending.
The Court construes Plaintiff’s renewed motion for default judgment as also including a
separate renewed application for entry of default against Defendant Eagle Tugs.
The record reveals that Plaintiff initiated this litigation on April 1, 2011. (Doc. 1). On
May 17, 2011, the Alias Summons (Doc. 9) was returned as executed as “personally served…on
the individual at Eagle Tugs LLC c/o Garrell Chiasson” on May 17, 2011. (Doc. 11). The
record reveals that Garrell A. Chiasson is the registered agent for service of process for
Defendant Eagle Tugs.1 (Doc. 18-1). Thus, proper service was effected as to Defendant Eagle
Tugs, but Defendant has failed to plead, answer, or otherwise defend this case.
As such, Plaintiff’s renewed application for entry of default, as contained in Doc. 18, is
GRANTED. Accordingly, it is ORDERED that a DEFAULT is entered against Defendant
Eagle Tugs for failure to plead, answer or otherwise defend.
Upon consideration of Plaintiff’s renewed motion for default judgment pursuant to Rule
55(b)(2), and as default against Eagle Tugs has been entered, the Court finds as follows.
Rule 55(b)(2) of the Federal Rules of Civil Procedure provides, in relevant part, as
follows with regard to entering a default judgment:
(b) Entering a Default Judgment.
1 Pursuant to Rules 4(h) and 4(e)(1)-(2) of the Federal Rules of Civil Procedure, a corporation can be
served by: delivering a copy of the summons and of the complaint to the individual personally; by leaving
a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and
discretion who resides there; or by delivering a copy of each to an agent authorized by appointment or by
law to receive service of process. Service can also be accomplished by delivering a copy of the summons
and of the complaint to an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process and--if the agent is one authorized by statute and the
statute so requires--by also mailing a copy of each to the defendant. FED.R.CIV.P 4(h)(1)(B).
(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
(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.
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., Pennsylvania Nat=l Mut. Cas. Ins.
Co. v. Edmonds, Slip Copy, 2009 WL 1158988, *2, n.3 (S.D. Ala. Apr. 29, 2009); Capitol
Records v. Carmichael, 508 F. Supp. 2d 1079, 1083, n.1 (S.D. Ala. 2007). Additionally, the
Eleventh Circuit has held that although Aa default is not treated as an absolute confession by the
defendant of his liability and of the plaintiff's right to recover, a defaulted defendant is deemed to
admit the plaintiff's well-pleaded allegations of fact. The defendant, however, is not held to
admit facts that are not well-pleaded or to admit conclusions of law.@ Tyco Fire & Sec., LLC v.
Alcocer, 218 Fed. Appx. 860, 863 (11th Cir. 2007) (per curiam) (citations and internal quotations
omitted). Moreover, Abefore entering a default judgment for damages, the district court must
ensure that the well-pleaded allegations of the complaint . . . actually state a cause of action and
that there is a substantive, sufficient basis in the pleadings for the particular relief sought.@ Id.
(emphasis omitted). When assessing damages in connection with a default judgment, the Court
has Aan obligation to assure that there is a legitimate basis for any damage award it enters.@
Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2007).
At the outset, the Court is satisfied that Defendant Eagle Tugs is on notice of the default
proceedings against it as Plaintiff has represented that it has notified said Defendant of the
default proceedings. (Doc. 18 at 2).
As to the merits of Plaintiff’s default judgment, the Court is satisfied that the
well-pleaded allegations of the complaint state a cause of action against Defendant Eagle Tugs
and that there is a substantive, sufficient basis in the pleadings for the relief the Plaintiff seeks.
Additionally, a default has been entered, supra, against Defendant Eagle Tugs for failure
to plead, answer or otherwise defend this case.
Moreover, as indicated in the Affidavit of Cary A. Des Roches (the Chief Executive
Officer of Cahaba (Doc. 18-2 at 1 (Aff. Des Roches at ¶1)), attached to Plaintiff’s renewed
motion for default judgment, despite being properly served, Defendant Eagle Tugs has failed to
plead, answer or otherwise defend this action. (Id. at 2 (Aff. Des Roches)). According to CEO
Des Roches, the Plaintiff paid Eagle Tugs $172,687.50 to purchase and transport an initial
shipment of 5,000 tons of rock (rip rap) and this payment was comprised of: 1) $119,000 for the
towage of the rock (rip rap) from the Vulcan Materials Company facility in Arkansas to the
Cahaba project site near Grand Isle, Louisiana; and 2) $53,687.50 ($10.60 per ton) to be paid to
the Vulcan Materials Company as a straight “pass through” for the cost of the rock (rip rap).
(Id. (Aff. Des Roches at 1 at ¶2)). Despite Plaintiff’s payment to Eagle Tugs, however, said
defendant failed to perform as required under the parties’ contract as it failed to pay the Vulcan
Materials Company for the rock (rip rap) and failed to tow the material to the Cahaba project site
near Grand Isle, Louisiana. (Id. (Aff. Des Roches at 1-2 at ¶3)). Due to this breach of contract,
Plaintiff seeks damages in the amount of $172,687.50. (Id. (Aff. Des Roches at 2 at ¶4)).
Based on the Plaintiff’s allegations and evidence of record, Defendant Eagle Tugs is
liable to Plaintiff in the amount of $172,687.50 for breach of contract. Accordingly, it is
ORDERED that Plaintiff’s renewed motion for default judgment (Doc. 18) against Defendant
Eagle Tugs, LLC, in the amount of $172,687.50, is GRANTED.
A Final Default Judgment consistent with the terms of this Order shall issue
DONE and ORDERED this the 1st day of November 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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