MC-UA Local 119 Health and Welfare Fund et al v. HLH Constructors, Inc.
Order re: 9 MOTION for Default Judgment. Plaintiffs are ordered by 10/31/2011 to supplement their motion with a memorandum and evidentiary submission as set out. Signed by Chief Judge William H. Steele on 10/13/2011. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MC-UA LOCAL 119 HEALTH and
WELFARE FUND, et al.,
HLH CONSTRUCTORS, INC.,
CIVIL ACTION 11-0241-WS-M
This matter comes before the Court on preliminary review of plaintiffs’ Motion for
Default Judgment (doc. 9). That review necessitates that plaintiffs supplement their Motion in
two important respects.1
First, in support of their request for a money judgment in the amount of dues and plan
contributions collected by defendant but not remitted to the union or to the relevant plans,
plaintiffs offer the affidavits of William Morrison and Robert Clapper. The Morrison Affidavit
Even where default judgment is properly entered, it remains incumbent on a
plaintiff to prove its damages. “While well-pleaded facts in the complaint are deemed admitted,
plaintiffs’ allegations relating to the amount of damages are not admitted by virtue of default;
rather, the court must determine both the amount and character of damages.” Virgin Records
America, Inc. v. Lacey, 510 F. Supp.2d 588, 593 n.5 (S.D. Ala. 2007); see also Eastern Elec.
Corp. of New Jersey v. Shoemaker Const. Co., 652 F. Supp.2d 599, 605 (E.D. Pa. 2009) (“A
party’s default does not suggest that the party has admitted the amount of damages that the
moving party seeks.”). Thus, in the default judgment context, a court is obliged to ensure that
there is a legitimate basis for any damages award that is entered. See, e.g., Adolph Coors Co. v.
Movement Against Racism and the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (explaining that
damages may be awarded on default judgment only if the record adequately reflects the basis for
award); Everyday Learning Corp. v. Larson, 242 F.3d 815, 818 (8th Cir. 2001) (affirming lower
court’s decision not to award damages on default judgment, where requested damages were
“speculative and not proven by a fair preponderance of the evidence”); Natures Way Marine,
LLC v. North America Materials, Inc., 2008 WL 1776946, *1 (S.D. Ala. Apr. 16, 2008) (in
default judgment setting, district court has obligation “not to award damages that are uncertain or
states that “[t]he Union’s records indicate that [defendant] deducted, but failed to remit, dues
totaling $8,432.22,” but does not append the records themselves as exhibits that might prove up
those damages. (Doc. 9-3, at ¶ 3.) Similarly, the Clapper Affidavit identifies $45,983.70 in
delinquent plan contributions “[a]ccording to the Plans’ estimations,” but sheds no light
whatsoever into how those self-described “estimations” were computed. (Doc. 9-4, at ¶ 3.) On
this showing, the Court cannot discern whether the requested damages are speculative or
illusory, or whether they are capable of being proven by a fair preponderance of the evidence.
The Clapper Affidavit further specifies that plan documents provide that such delinquent
amounts are subject to 12% interest and 20% liquidated damages, without identifying or
appending the relevant portions of the plan documents that might support such enhancements.
Second, with respect to plaintiffs’ demand for recovery of attorney’s fees and costs,
plaintiffs do not provide either statutory citations or copies of plan documents that might
authorize such an award in this case. Further, plaintiffs fail to provide itemized billing records
that are necessary to assess the reasonableness of the claimed attorney’s fees, but instead merely
recite a summary statement of hours expended and hourly rate charged. (Doc. 9-1.) On this
showing, the Court cannot evaluate the reasonableness of the fees claimed. See, e.g., Vision
Bank v. Hill, 2011 WL 250430, *4 n.6 (S.D. Ala. Jan. 25, 2011) (disallowing plaintiff’s request
for award of attorney’s fees and expenses on default judgment, where “without itemization or
explanation of what these attorney’s fees and costs represent or how they were incurred, the
Court cannot satisfy its obligation to ascertain the reasonableness of the charges”); Willow Lake
Residential Ass’n, Inc. v. Juliano, --- So.3d ----, 2010 WL 3377701, *11 (Ala.Civ.App. Aug. 27,
2010) (“Alabama law reads into every agreement allowing for the recovery of attorney’s fees a
Without supplementation in each of the foregoing areas, the Court is unable to satisfy its
“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. 2003); see also PNCEF, LLC v. Hendricks
Bldg. Supply LLC, 740 F. Supp.2d 1287, 1294 (S.D. Ala. 2010) (“Rather than merely telling the
Court in summary fashion what its damages are, a plaintiff seeking default judgment must show
the Court what those damages are, how they are calculated, and where they come from, by
reference to the … agreement, appropriate back-up documentation, and witness testimony as
In light of the foregoing, plaintiffs are ordered, on or before October 31, 2011, to
supplement their Motion for Default Judgment with a memorandum and evidentiary submission
on damages that address these matters.
DONE and ORDERED this 13th day of October, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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