Federal Deposit Insurance Corporation v. Hoolihan

Filing 13

ORDER granting in part 12 Plaintiff's Motion for Final Default Judgment and Memorandum in Support. The Court finds Plaintiff is entitled to $156,393.20. The Court hereby finds Plaintiff is entitled to an award of reasonable attorney's fees and costs. The Clerk shall enter judgment accordingly, terminate all previously scheduled deadlines and pending motions, and close the file. Signed by Judge Sheri Polster Chappell on 11/12/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receivers of
Silverton Bank, N.A.,
Plaintiff,
v.

Case No: 2:13-cv-541-SPC-DNF

THOMAS HOOLIHAN,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff's Motion for Final Default
Judgment and Memorandum in Support (Doc. #12) filed on October 14, 2013. No
response or opposition has been filed by Defendant and the time to do so has expired.
The Motion is now ripe for review.
A district court may enter a default judgment against a properly served defendant
who fails to defend or otherwise appear pursuant to Federal Rule of Civil Procedure
55(b)(2). ABS-SOS Plus Partners Ltd. v. Vein Associates of America, Inc., No. 6:08-cv1409-Orl-31DAB, 2008 WL 5191701, at *1 (M.D. Fla. Dec. 10, 2008) (citing DirecTV,
Inc. v. Griffin, 290 F. Supp.2d 1340, 1343 (M.D. Fla. 2003)). In this instance, Defendant
was properly served on July 29, 2013. (Doc. #8). Plaintiff moved for an entry of clerk’s

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default on August 22, 2013. (Doc. #9). A Clerk’s Entry of Default was entered on
September 12, 2013, against Defendant. (Doc. #11). To date Defendant has failed to
answer, respond or otherwise make an appearance in this case. Having determined that
Defendant has failed to answer or otherwise defend against the Complaint, the Court
must now look to see if the allegations in the Complaint provide a sufficient legal basis
for the entry of a default judgment.
A court may enter a default judgment only if the factual allegations of the
Complaint, which are assumed to be true, provide a sufficient legal basis for such entry.
Nike, Inc. v. Austin, 2009 WL 3535500, at *1 (M.D. Fla. Oct. 28, 2009) (citing
Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)
(“The defendant is not held to admit facts that are not well-pleaded or to admit
conclusions of law.”)). Therefore, in considering a motion for default judgment, a court
must “‘examine the sufficiency of the allegations in the complaint to determine whether
the plaintiff is entitled to’ a default judgment.” Nike, Inc., 2009 WL 3535500, at *1 (citing
Fid. & Deposit Co. v. Williams, 699 F. Supp. 897, 899 (N.D. Ga. 1988)).
On July 19, 2013, Plaintiff filed a Complaint against Defendant seeking to recover
unpaid funds pursuant to a Bank Promissory Note. (Doc. #1). Plaintiff alleges on March
29, 2006, Defendant borrowed $150,000.00 through a Note. (Doc. #1, ¶6).
Subsequently, Defendant breached the terms of the Note by failing to pay the payment
due May 29, 2010, and has remained in breach of the Note at all times thereafter. (Doc.
#1, ¶7). On or about June 4, 2013, Plaintiff notified Defendant about his default and
demanded full payment of the Note along with accrued interest. (Doc. #1, ¶8).
Defendant has not paid the balance on the note and accordingly owes Plaintiff

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$128,799.18 in principal on the Note, late fees in the amount of $1,300.00, a
process/release fee in the amount of $50, and interest. (Doc. #1, ¶¶15,17).
The promissory note states Georgia law governs to the extent not preempted by
federal law. (Doc. #1-1, at 2). Under Georgia law, a plaintiff claiming a breach of
contract has a burden of pleading and proving (1) the subject matter of the contract, (2)
consideration, and (3) mutual assent by the parties to all of the contract terms.
Huddleston v. Smith, No. 1:09-cv-03669-JOF, 2010 WL 1410556, at *2 (N.D. Ga. Mar.
30, 2010) (citing O.C.G.A. § 13-3-1; Broughton v. Johnson, 247 Ga.App. 819, 819
(2001)). Additionally, under Georgia law, the essential elements of a breach of contract
claim are (1) a valid contract; (2) a material breach of its terms; and (3) damages arising
therefrom. U.S. Faucets, Inc. v. Home Depot U.S.A. Inc., No. 1:03-CV-1572WSD, 2006
WL 1518887, at *10 (N.D. Ga. May 31, 2006) (citing TDS Healthcare Systems Corp. v.
Humana Hosp. Illinois, Inc., 880 F.Supp. 1572, 1583 (N.D. Ga. 1995)). Plaintiff has
sufficiently pled and proved the existence of a valid contract. (See Doc. #1, Doc. #1-1)
By failing to answer the Complaint, Defendant admits that he entered into a contract
with Plaintiff, breached this contract, and the breach resulted in damages to Plaintiff
who has a right to complain about the contract being broken. See e.g., SunTrust Bank
v. Trejos, No. 6:11-cv-486-Orl-18KRS, 2011 WL 3898012, at *2 (M.D. Fla. Aug. 18,
2011). Accordingly, a default judgment is due to be granted.
Turning now to the damages in this action, it is well understood that “a judgment
by default may not be entered without a hearing unless the amount claimed is a
liquidated sum or one capable of mathematical calculation.” United Artists Corp. v.
Freeman, 605 F.2d 854, 857 (5th Cir. 1979); see also Fed.R.Civ.P. 55(b); Patray v.

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Northwest Publ’g, Inc., 931 F.Supp. 865, 869 (S.D. Ga. 1996). Plaintiff must establish
that the amount is reasonable under the circumstances. Patray, 931 F.Supp. at 869.
Here, Plaintiff alleges it is owed $156,665.01. This amount comprises of an
outstanding principal balance in the amount of $128,799.18; prejudgment interest on the
principal in the amount of $26,244.02 as of September 12, 2013; late fees in the amount
of $1,300.00; a process/release fee in the amount of $50.00; and the cost of this action
in the amount of $271.81. Upon consideration of the record, the Court finds Plaintiff is
entitled to these costs. However, to date Plaintiff has not adequately established the
costs of this action. Accordingly, the Court finds Plaintiff is entitled to $156,393.20.
The Note also specifies attorney’s fees. (Doc. #1-1, at 2). “Under O.C.G.A. § 131-11(a)(3), obligations to pay attorney’s fees on a promissory note are valid and
enforceable if the terms of the note so provide and the maker of the note is notified in
writing that it can pay the principal and interest accrued on the note without the
additional attorney’s fees if payment is made within ten days from receipt of notice.”
Atlanta Collections, LLC v. Khatib, No. 1:07-CV-0706-JOF, 2007 WL 2757281, at *3
(N.D. Ga. Sept. 18, 2007). Plaintiff has complied with the O.C.G.A. § 13-1-11(a)(3)
standard. (See Doc. #1-1, Doc. #1-2). At this time, Plaintiff has not specified a
reasonable amount in attorney’s fees. Instead, Plaintiff has requested a ruling only that
it is entitled to an award of reasonable attorney’s fees and will submit a request for the
amount of attorney’s fees within 14 days after the entry of a judgment pursuant to
Fed.R.Civ.P. 54(d)(2)(B). The Court finds this request is due to be granted.
Accordingly, it is now
ORDERED:

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Plaintiff's Motion for Final Default Judgment and Memorandum in Support (Doc.
#12) is GRANTED in part. The Court finds Plaintiff is entitled to $156,393.20. The Court
hereby finds Plaintiff is entitled to an award of reasonable attorney’s fees and costs. The
Clerk shall enter judgment accordingly, terminate all previously scheduled deadlines
and pending motions, and close the file.
DONE and ORDERED in Fort Myers, Florida this 12th day of November, 2013.

Copies: All Parties of Record

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