PNC Bank, National Association v. Pounds Wrecking, Inc. et al

Filing 22

ORDER granting in part and denying in part 17 Motion for Default Judgment as follows: GRANTED as to its claim for breach of promissory note, but with leave to prove damages; and2) DENIED as to its request for future accruals of courts costs.PNC is ORDERED to file by September 23, 2014, an amended request for attorney fees.. Signed by Judge Kristi K. DuBose on 9/16/2014. (certified mail to Pounds Wrecking 70123050000165481980) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PNC BANK, N.A.,
Plaintiff,
vs.
POUNDS WRECKING, INC. et al.,
Defendants.

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CIVIL ACTION NO. 14-00193-KD-B

ORDER
This matter is before the Court on Plaintiff’s Rule 55(a) and (b)(1) motion for entry of a
default judgment against Defendant Pounds Wrecking, Inc. (Doc. 17).
I.

Background
Plaintiff PNC Bank, N.A. (“PNC”) filed a Complaint (as amended) against Defendant

Pounds Wrecking, Inc. (“Pounds Wrecking”)1 for breach of a promissory note, alleging that
Pounds Wrecking failed and/or refused to pay PNC amounts due under a promissory note and
thus is indebted to PNC for the amount due including attorney’s fees, stemming from said breach
and default.2 (Docs. 1, 8). Specifically, on July 1, 2008, RBC Bank (USA),3 and Pounds
Wrecking executed a Promissory Note in the principal amount of $200,000. (Doc. 8-1 at 6-7).4

1

The two (2) other claims, breach of 2007 Guaranty and 2008 Guaranty, are alleged solely against Joseph
G. Pounds and those claims are stayed per bankruptcy.
2

The claim sounds under Alabama state law. Although no federal question is asserted, the Court is
satisfied that federal subject-matter jurisdiction was properly invoked by Plaintiff pursuant to 28 U.S.C. § 1332, as
the well-pleaded allegations of the Complaint (and facts before the undersigned) establish complete diversity of
citizenship and that the amount in controversy exceeds the sum of $75,000, exclusive of costs and attorney's fees.
3

PNC Bank, N.A. is the successor to RBC Bank (USA). (Doc. 17-2 at 3-4 (Aff. Enns)).

4

Alabama law applies to the subject agreement as the Promissory Note specifically provides for such as
the governing law. (Doc. 8-1 at 7 (“[t]his Note will be governed by federal law applicable to Lender and, to the

(Continued)
1

The Note was secured by a July 1, 2008 mortgage recorded in the Probate Court of Mobile
County, Alabama on July 3, 2008. (Doc. 8-1 at 9-18). The Note matured on July 1, 2013 and
PNC alleges that Pounds Wrecking failed to pay the sums due as provided for under the terms of
the Note, and thus defaulted. PNC accelerated the Note and on September 9, 2013 made demand
on Pounds Wrecking for payment of all sums due. (Doc. 8-1 at 30-32). According to PNC, as of
August 5, 2014 the outstanding indebtedness on the Note totals $155,787.07 – comprised of
principal in the amount of $130,490.64, $10,396.42 in unpaid accrued interest, $7,040.51 in late
charges, per diem interest at the rate of $24.466995, and $7,859.50 in attorneys’ fees,5 plus
“future accruals of interest and court costs.” (Docs. 8, 17).
On June 11, 2014, Pounds Wrecking was served with a copy of the summons and
complaint by certified mail, by personal service on its Agent for Service of Process, Joseph G.
Pounds.6 (Doc. 11). Pounds Wrecking’s answer was due by July 2, 2014. (Id.) Pounds
Wrecking did not answer or otherwise defend. As such, upon PNC’s application, the Clerk
entered a default against Pounds Wrecking on July 9, 2014. (Doc. 14). PNC now moves for
entry of a default judgment against Pounds Wrecking and seeks a monetary judgment under Rule
54(b) in favor of PNC as to the amounts owed to it by Pounds Wrecking. (Doc. 17).

extent not preempted by federal law, the laws of the State of Alabama without regard to its conflicts of law
provisions. This Note has been accepted by Lender in the State of Alabama[]”).
5

PNC appears to seek to recover of all its attorneys’ fees against both defendants, not just the fees incurred
as to Pounds Wrecking.
6

This Court generally requires that some notice be given to defendants between the time of service of the
summons and complaint and the entry of a default judgment. See, e.g., JP Morgan Chase Bank, N.A. v. Surek, 2011
WL 5289254, *2 (S.D. Ala. Nov. 4, 2011); Pennsylvania Nat. Mut. Cas. Ins. Co. v. King, 2012 WL 1712670, *2
n.4 (S.D. Ala. May 15, 2012). Based on a review of the record, the Court is satisfied that Pounds Wrecking is on
notice of the default proceedings against it, as it was listed on Plaintiff’s certificate of service with its application for
default and motion for default judgment, and the Court mailed a copy of the Clerk’s entry of default to Pounds
Wrecking’s address of record.

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II.

Default Judgment
The Federal Rules of Civil Procedure establish a two-part process for obtaining a default

judgment. Fed.R.Civ.P. 55. If “a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party’s default.” Fed.R.Civ.P. 55(a). After default has been entered, if the
“claim is for a sum certain or a sum that can be made certain by computation” the clerk must
enter default judgment. Fed.R.Civ.P. 55(b)(1). In all other circumstances, such as here, “the
party must apply to the court for a default judgment.” Fed.R.Civ.P. 55(b)(2).
The Eleventh Circuit has held that although “a 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, “before 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). Therefore, PNC must establish a “prima
facie liability case” against Pounds Wrecking. Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F.
Supp. 2d 1353, 1357 (S.D. Ga. 2004) (citations omitted). Further, when assessing damages, the
Court has “an 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). Overall, “there is a
strong policy of determining cases on their merits” and therefore defaults are viewed “with
disfavor.” In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003). “Since this

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case involves a default judgment there must be strict compliance with the legal prerequisites
establishing the court's power to render the judgment.”

Varnes v. Local 91, Glass Bottle

Blowers Ass'n of U.S. and Canada, 674 F.2d 1365, 1369 (11th Cir. 1982).
In support of its motion, PNC has submitted two (2) Affidavits: Stephen Enns (PNC
Asset Manager) and T. Julian Motes (one of PNC’s attorneys). (Doc. 17-2 (Aff. Enns); Doc. 173 (Aff. Motes)). PNC also filed with its original and amended complaints, a copy of the
Promissory Note. (Doc. 1-2; Doc. 8-1).
Under Alabama law, loan documents are governed under contract law. See Penick v.
Most Worshipful Prince Hall Grand Lodge F&AM of Ala., Inc., 46 So.3d 416, 428 (Ala. 2010)
(construing terms of a mortgage, notes and modification agreement). In that regard, “[i]f the
terms within a contract are plain and unambiguous, the construction of the contract and its legal
effect become questions of law for the court and, when appropriate, may be decided by a
summary judgment.” Diamond v. Bank of Ala., 43 So.3d 552, 563 (Ala. 2009) (construing terms
of a promissory note, guaranty, line of credit and letter of credit and finding documents
underlying loan transaction were not ambiguous) (citations omitted). See Peppertree Apts., Ltd.
v. Peppertree Apts., 631 So.2d 873, 878 (Ala. 1993) (“The intention of the parties controls when
a court construes the terms of a promissory note, and that intention is to be derived from the
provisions of the contract, if the language is plain and unambiguous.”).
In order to prevail on its breach of promissory note claim against Pounds Wrecking, PNC
must establish the following elements: 1) a valid contract (here a promissory note) binding the
parties; 2) plaintiff's performance under the contract; 3) defendant's non-performance; and 4)
resulting damages. See, e.g., National Sec. Fire & Cas. Co. v. DeWitt, 85 So.3d 355, 371 (Ala.
2011); Shaffer v. Regions Fin. Corp., 29 So.3d 872, 880 (Ala. 2009); Vision Bank v. Algernon

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Land Co., L.L.C., 2011 WL 1380062, *7 (S.D. Ala. Apr. 12, 2011); Wachovia Bank, NA v.
L&H Invest., LLC, 2010 WL 3825572, *4 (M.D. Ala. Sep. 24, 2010).
The undisputed evidence of record confirms that these elements are satisfied with regard
to the breach of the Promissory Note. Specifically, PNC loaned funds to Pounds Wrecking via a
valid contract binding the parties (the Promissory Note);7 the Note was in default (per the Notice
of default letter) because Pounds Wrecking failed to perform (i.e., pay amounts due and owing
under its terms); PNC performed (i.e., it loaned Pounds Wrecking the funds); and damages have
resulted (i.e., a balance is owed to PNC). Further, as to evidence of the precise debt due
($155,787.07 under the terms of the Note), PNC has submitted two (2) uncontroverted Affidavits
which verify the facts as plead in the Complaint and that all copies attached were true, correct
and genuine. (Docs. 17-2, 17-3). Alabama law provides that the proffer of a copy of a note and
affidavit testimony as to the amounts due under a note, as well as a defendant's failure to make
the required payments, is sufficient to establish a plaintiff's case to recover a note. See, e.g.,
Wells Fargo Bank, N.A. v. Vergos, 2012 WL 206169, *2 (S.D. Ala. Jan. 24, 2012) (“Alabama
law provides that the proffer of a copy of the note and affidavit testimony as to the amounts due
under the note, as well as the defendant's failure to make the required payments, is sufficient to
establish a plaintiff's case to recover a note[]”). Thus, under Alabama law, PNC is entitled to
entry of default judgment as a matter of law on its breach of promissory note claim against
Pounds Wrecking.
Further, on a motion for default judgment, the “court has an obligation to assure that
there is a legitimate basis for any damage award it enters.” Philpot, 317 F.3d at 1266. In the
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While the Note was executed with RBC Bank (USA), PNC is the successor to RBC Bank (USA) and thus
PNC is the current holder of the Note and is entitled to enforce same. (Doc. 17-2 (Aff. Enns)).

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motion for default judgment, PNC alleges that the amount owed on the Note totals $155,787.07 –
comprised of principal in the amount of $130,490.64, $10,396.42 in unpaid accrued interest,
$7,040.51 in late charges, per diem interest at the rate of $24.466995 from July 30, 2014, and
$7,859.50 in attorneys’ fees, plus “future accruals of interest and court costs.” (Docs. 8, 17, 172). Based on the record (including the Affidavits and copies of the relevant loan documents), the
Court is satisfied that entry of a default judgment in favor of PNC and against Pounds Wrecking
is proper in the amount of $130,490.64 (outstanding principal) plus $10,396.42 (unpaid accrued
interest), $7,040.51 (late charges), and per diem interest at the rate of $24.466995 from July 30,
2014 through the date of the entry of judgment. However, the amount of attorneys’ fees and
future accruals of interest and court costs is a different matter.
III.

Attorneys’ Fees and Costs
PNC moves for recovery of $7,859.50 in attorneys’ fees as well as “future accruals of

interest and court costs.” The Promissory Note provides that Pounds Wrecking shall pay its
attorneys fees and costs if Pounds Wrecking does not pay. (Doc. 8-1 at 7). Per the Note, Pounds
Wrecking agreed to pay the bank’s attorneys’ fees and legal expenses as well as any court costs.
(Id.) In his Affidavit, Motes (counsel for PNC) asserts that the requested fees and expenses were
reasonably incurred. (Doc. 17-3 at 3 (Aff. A.Motes)).
“Alabama follows the American rule, whereby attorney fees may be recovered if they are
provided for by statute or by contract....” Jones v. Regions Bank, 25 So.3d 427, 441 (Ala. 2009)
(citations omitted). See also Battle v. City of Birmingham, 656 So.2d 344, 347 (Ala. 1995)
(same). The law is clear that “provisions regarding reasonable attorney's fees are terms of the
contracts susceptible to breach.” Army Aviation Center Federal Credit Union v. Poston, 460
So.2d 139, 141 (Ala.1984). See also Ierna v. Arthur Murray Int'l, Inc., 833 F.2d 1472, 1476 (11th

6

Cir. 1987) (“When the parties contractually provide for attorneys' fees, the award is an integral
part of the merits of the case[]”). Under Alabama law, such attorney's fees are recoverable;
however, recovery is subject to Alabama's imposition of a reasonableness constraint on all feeshifting contracts, as a matter of public policy. See, e.g., Willow Lake Residential Ass'n, Inc. v.
Juliano, 80 So.3d 226, 241 (Ala. Civ. App. 2010) (“Alabama law reads into every agreement
allowing for the recovery of attorney's fees a reasonableness limitation[]”); PNCEF, LLC v.
Hendricks Bldg. Supply LLC, 740 F. Supp. 2d 1287, 1294 (S.D. Ala. 2010) (rejecting claim for
attorney's fees in amount of 15% of fund to be collected, where plaintiff made no showing of its
actual attorney's fee incurred in enforcing contract). Thus, PNC is entitled to recover only its
reasonable attorneys’ fees and costs incurred in collecting on Pounds Wrecking’s debt.
The calculation of reasonable attorney’s fees is clearly within the sound discretion of the
court. Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1187 (11th Cir. 1983); Kiker v. Probate
Court of Mobile Cty., 67 So.3d 865, 867 (Ala. 2010). In assessing the reasonableness of
attorney's fee requests, courts generally apply the “lodestar” method to obtain an objective
estimate of the value of an attorney's services. Norman v. Housing Auth. of City of Montgomery,
836 F.2d 1292, 1299 (11th Cir. 1988); Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th
Cir. 2000) (explaining that the lodestar “is the number of hours (tempered by billing judgment)
spent in the legal work on the case, multiplied by a reasonable market rate in the local area”).
The value of an attorney's services is calculated by multiplying the hours that the attorney
reasonably worked by a reasonable rate of pay, defined as “the prevailing market rate in the legal
community for similar services by lawyers of reasonably comparable skills, experience, and
reputation.” Blum v. Stenson, 465 U.S. 886, 895–896 n. 11 (1984). The party moving for fees
bears the burden of establishing the “reasonableness” of the hourly rate and number of hours

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expended via specific evidence supporting the hours and rates claimed. Hensley v. Eckerhart,
461 U.S. 424, 433 (1983); American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427
(11th Cir. 1999). The court may utilize its own “knowledge and expertise” to come to an
independent judgment regarding the reasonableness of requested attorney's fees. Loranger v.
Stierheim, 10 F.3d 776, 781 (11th Cir. 1994).
When seeking attorney’s fees, the prevailing party must not request fees for hours that are
“excessive, redundant, or otherwise unnecessary;” or request fees for unsuccessful claims.
Hensley, 461 U.S. at 434-435. When a request for attorney's fees is unreasonably high, the court
may “conduct an hour-by-hour analysis or it may reduce the requested hours with an across-theboard cut.” Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). Likewise, where
the rates or hours claimed seem excessive or lack the appropriate documentation, a court may
calculate the award based on its own experience, knowledge, and observations. See, e.g.,
Norman, 836 F.2d at 1299. Notably,“[t]he court, either trial or appellate, is itself an expert on
the question and may consider its own knowledge and experience concerning reasonableness and
proper fees and may form an independent judgment with or without the aid of witnesses.” Id. at
1303 (citations omitted).
Further, the lodestar figure established by the Court may be adjusted by consideration of
various factors including:
(1) the nature and value of the subject matter of the employment; (2) the learning,
skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the
professional experience and reputation of the attorney; (5) the weight of his
responsibilities; (6) the measure of success achieved; (7) the reasonable expenses
incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a
professional relationship; (10) the fee customarily charged in the locality for
similar legal services; (11) the likelihood that a particular employment may
preclude other employment; and (12) the time limitations imposed by the client or
by the circumstances.

8

Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala. 1988). See also e.g. Pharmacia
Corp. v. McGowan, 915 So.2d 549, 552-554 (Ala. 2004); Lolley v. Citizens Bank, 494 So.2d 19
(Ala. 1986). These criteria are for purposes of evaluating whether an attorney fee is reasonable
but they are not an exhaustive list of specific criteria that must all be met. Beal Bank, SSB v.
Schilleci, 896 So.2d 395, 403 (Ala. 2004).
A.

Reasonable Rate

A plaintiff has the burden of supplying the Court with specific and detailed evidence
from which the Court can determine the reasonable hourly rate for the work performed. Barnes,
168 F.3d at 427 (citing Norman, 836 F.2d at 1303). The Eleventh Circuit has instructed that a
reasonable hourly rate is “the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836
F.2d at 1299. In this case, the relevant legal community is Mobile, Alabama. See Barnes, 168
F.3d at 437 (providing that “the ‘relevant market’ for purposes of determining the reasonable
hourly rate for an attorney’s services is the place where the case is filed.” (citation omitted)). The
Court, which is familiar with the prevailing rates in the local market (Mobile, Alabama), may act
as its own expert and rely on its “knowledge and experience” to determine the reasonableness
and propriety of the requested fees. Loranger, 10 F.3d at 781.
The rates requested include rates for time counsel ($175/hour for counsel with 19-36
years of experience) as well as paralegals (ranging from $90/hour to $120/hour) expended, for a
total of 47.40 hours litigating this case. (Doc. 17-3 at 4). Specifically, Plaintiff seeks $175/hour
for 19.90 hours of work by George M. Neal, Jr. (36 years of experience); $175/hour for 19.40
hours of work by T. Julian Motes (31 years of experience); $175/hour for 2.8 hours of work by
Peter Wright (19 years of experience); $90/hour for 4.8 hours for paralegal Susan Conger (years

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of experience unknown); and $120/hour for .50 hours for paralegal Sheldon Eller (years of
experience unknown). (Doc. 17-3 at 4). As set forth below, the Court, utilizing its own expertise
in this market as well as a review of prior fee awards, has determined hourly rates and time that it
deems reasonable and appropriate for the work performed in this case. See, e.g., Vision Bank v.
FP Mgmt., LLC, 2012 WL 222951, *3 (S.D. Ala. Jan. 25, 2012); Vision Bank v. Anderson, 2011
WL 2142786, *3 (S.D. Ala. May 31, 2011); Mitchell Co., Inc. v. Campus, 2009 WL 2567889, *1
and *17–18 (S.D. Ala. Aug. 18, 2009); Wells Fargo Bank, N.A. v. Williamson, 2011 WL
382799, *4 (S.D. Ala. Feb. 3, 2011).
1.

Partners8

Regarding the requested $175/hour rate for partners Neal, Motes and Wright (having over
10 years of experience) this rate does not exceed rates which have been found reasonable in this
Court. See, e.g., Wells Fargo Bank, N.A. v. Friday Const. Co., Inc., 2012 5381558, *5 (S.D. Ala.
Oct. 31, 2012); Williamson, 2011 WL 382799 at *4. As such, upon consideration, the Court
finds the requested rates for Neal, Motes and Wright are due to be granted, as they are reasonable
and below partner rates previously awarded by this Court. As such, the Court awards attorneys
Neal, Motes and Wright, the rate of $175/hour.
2.

Paralegals

PNC seeks recovery of fees for the work of two (2) paralegals: Conger and Eller, whose
years experience are not provided.

In this market, this Court regularly approves rates of

$75/hour for paralegals. See, e.g., SE Property Holdings, LLC v. Green, 2013 WL 790902, *6
(S.D. Ala. Mar. 1, 2013); Zuffa, LLC v. Al–Shaikh, 2011 WL 1539878, *9 (S.D. Ala. Apr. 21,
2011); Williamson, 2011 WL 382799, *5; Adams v. Austal, U.S.A., L.L.C., 2009 WL 3261955,
8

Identified as “shareholders” on the law firm’s website.

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*2 (S.D. Ala. Oct. 7, 2009); Lanier Construction Inc. v. Carbone Properties of Mobile, LLC, CV
06–0070–CB–B (S.D. Ala. Feb. 12, 2008). As such, the Court awards the hourly rate of
$75/hour for work performed by paralegals Conger and Eller.
B.

Reasonable Hours Expended

In determining whether the number of hours expended are reasonable, the Court should
not include any hours which are “excessive, redundant, or otherwise unnecessary.” Norman, 836
F.2d at 1301. When awarding an attorney’s fee, the “[c]ourts are not authorized to be generous
with the money of others, and it is as much the duty of courts to see that excessive fees and
expenses are not awarded as it is to see that an adequate amount is awarded.” Barnes, 168 F.3d at
428. The Court will not permit a party to recover fees for hours that are excessive, redundant, or
unnecessary, i.e., hours “that would be unreasonable to bill to a client and therefore to one’s
adversary irrespective of the skill, reputation or experience of counsel.” Norman, 836 F.2d at
1301 (emphasis omitted). While there is no per se rule of proportionality, City of Riverside v.
Rivera, 477 U.S. 561, 574 (1986), the Supreme Court has made clear that such could still be
considered a factor in determining the reasonableness of a fee request. “The amount of damages
a plaintiff recovers is certainly relevant to the amount of attorney's fees to be awarded under §
1988.... It is, however, only one of many factors that a court should consider in calculating an
award of attorney's fees.” Id. (citation omitted). In sum, “[i]f fee applicants do not exercise
billing judgment, courts are obligated to do it for them, to cut the amount of hours for which
payment is sought, pruning out those that are excessive, redundant, or otherwise unnecessary.
Courts are not authorized to be generous with the money of others.” Barnes, 168 F.3d at 428.
In conjunction with the motion, counsel for PNC has submitted billing records (through
July 15, 2014) (Doc. 17-3 at 9-14). Counsel for PNC’s billing records (through July 15, 2014)

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(Doc. 17-3 at 9-14) indicate that the individuals working on this cased billed a total of 47.40
billed hours. (Doc. 17-3 at 9-14). Counsel for PNC asserts further, that the time expended in
this case was reasonable. (Id.) However, a review of these records results in a need for further
explanation and information from counsel.
Specifically, counsel has not differentiated the attorneys’ fees sought as to individual
defendant Joseph Pounds versus corporate defendant Pounds Wrecking, and the present motion
is solely as to Pounds Wrecking, such that only those entries which are clearly as to Pounds
Wrecking may be recoverable. Additionally, there are gaps in the billing record and billed time
for items seemingly unrelated to PNC’s breach of promissory note claim against Pounds
Wrecking, for which recovery would then not be allowable. For example, the entries from
4/3/14 through 4/23/14 (Doc. 17-3 at 9) are related to billed time for an estate/probate claim of
Joseph B. Pounds filed in Mobile County Probate Court. It does not appear that such a claim is
part of PNC’s breach of promissory note action against Pounds Wrecking (and PNC has not
alleged as such). Moreover, there are a number of entries which reference a “Daniel Fourmont”
but there is no information as to his relevance to PNC’s breach of promissory note claim against
Pounds Wrecking. Further, there are many entries that are so redacted there is no information
left indicating that the billed time was even incurred as part of PNC’s breach of promissory note
claim against Pounds Wrecking. (See, e.g., Doc. 17-3 at 10, 5/28/14 .3 Motes entry stating only
“begin review of”).

Finally, there are numerous entries relating to property leases, lessee

requests, change of ownership forms, cell phone towers, and rents – as well as to something
related to “Crown Castle” (Doc. 17-3 at 13) – yet no indication as to how such billed time is
relevant to PNC’s breach of promissory note claim against Pounds Wrecking. (See, e.g., Doc.
17-3 at 11, 6/19/14 Motes entry).

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As such, at present, the Court is not satisfied that there is an ascertainable amount of
damages. “[A]llegations relating to the amount of damages are not admitted by virtue of default.
Rather, the Court determines the amount and character of damages to be awarded.” Miller v.
Paradise of Port Richey, Inc., 75 F.Supp.2d 1342, 1346 (M.D. Fla. 1999).
PNC is ORDERED to file by September 23, 2014, an amended request for attorney fees
which addresses the concerns delineated above.
C.

Costs

PNC does not seek recovery of any costs it has already incurred, and has also submitted
no documentation in support of same. Rather, PNC seeks to recover an additional unknown sum
for “future accruals of … court costs.” (Doc. 17 at 4). However, PNC has provided no case law
supporting the propriety and/or reasonableness of a party’s ability to recover costs not yet
incurred, and thus the request is DENIED.
IV.

Conclusion
Accordingly, it is ORDERED that PNC’s motion for default judgment against Pounds

Wrecking, Inc. (Doc. 17) is GRANTED in part and DENIED in part as follows: 1)
GRANTED as to its claim for breach of promissory note, but with leave to prove damages; and
2) DENIED as to its request for future accruals of courts costs.
PNC is ORDERED to file by September 23, 2014, an amended request for attorney
fees. The Court will then assess the full amount of damages due to PNC due to Pounds
Wrecking, Inc.’s breach of the promissory note, and issue a separate order and Rule 54(b)
Judgment9 as to same.

9

As requested by the parties given individual Joseph Pounds’ bankruptcy status.

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The Clerk is DIRECTED to provide a copy of this Order, via certified mail, to
Defendant Pounds Wrecking, at the address of record where service was perfected.
DONE and ORDERED this the 16th day of September 2014.
_s/Kristi K. DuBose
KRISTI K. DUBOSE
UNITED STATES DISTRICT JUDGE

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