Arrow Electronics, Inc. v. AFC Green Electric, Inc.
Filing
13
ORDER granting in part and denying in part 12 Motion for Default Judgment. The Clerk shall enter judgment in favor of plaintiff and against defendant as to Count I as stated in the Order and dismissing remaining counts without prejudice, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 1/8/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ARROW ELECTRONICS, INC., a
New York corporation
Plaintiff,
v.
Case No: 2:13-cv-584-FtM-29UAM
AFC GREEN ELECTRIC, INC., a
Florida corporation,
Defendant.
ORDER
This matter comes before the Court on plaintiff's Motion for
Default Judgment Against Defendant AFC Green Electric, Inc. (Doc.
#12) filed on October 9, 2013.
time to respond has expired.
No response has been filed and the
The Court finds that an evidentiary
hearing is not required and will render a decision based on the
documents submitted.
On August 12, 2013, plaintiff filed a four count Complaint
(Doc. #1) seeking damages in the amount of $128,489.70, plus
interest, costs, and attorney’s fees for defendant’s failure to
pay for products delivered and accepted by defendant.
After
service of process and finding no appearance or response, plaintiff
moved for and was granted a Clerk’s Entry of Default (Doc. #11).
(See also Docs. ## 9, 10.)
Therefore, plaintiff has fulfilled the
necessary prerequisite for a default judgment.
Fed. R. Civ. P.
55(a).
“A defendant, by his default, admits the plaintiff’s wellpleaded allegations of fact, is concluded on those facts by the
judgment, and is barred from contesting on appeal the facts thus
established. [ ] A default judgment is unassailable on the merits,
but only so far as it is supported by well-pleaded allegations. [
] A default defendant may, on appeal, challenge the sufficiency of
the complaint, even if he may not challenge the sufficiency of the
proof.”
Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561
F.3d 1298, 1307 (11th Cir. 2009)(internal quotations and citations
omitted).
Deeming
all
facts
in
the
Complaint
as
admitted,
beginning in or about January 2013, defendant ordered various
electronic products on credit and plaintiff delivered the products
to defendant pursuant to invoices stating the amount, terms, and
conditions.
The invoices provide that any past due balances will
accrue interest at the monthly rate of 1.5%, and that defendant
would be responsible for all costs and expenses incurred for
collection.
Defendant has failed or refused to pay the amounts
owing, and is indebted to plaintiff for the principal amount of
$128,489.70 under the breached invoices.
invoices are attached to the Complaint.
Copies of the unpaid
(Doc. #1-2, Exh. B.)
The
Terms and Conditions of Sale (Doc. 31-3, Exh. C) are also attached
to the Complaint and provide that payment is due 30 days from the
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invoice date and past due sums will accrue interest; that defendant
assents to the terms and conditions by having accepted products;
that defendant is responsible for all costs and expenses incurred
by
plaintiff
in
collecting
sums
owing,
including
reasonable
attorney’s fees; and that the laws of the State of New York apply.
Plaintiff asserts a breach of contract, and three other claims in
the
alternative.
The
Court
finds
that
the
Complaint
is
sufficiently pled to support a default judgment for the breach of
contract (Count I).
The remaining counts will be dismissed
without prejudice.
In support, plaintiff filed the Declaration of Kendra Rhoades
(Doc. #12-1, Exh. A) and the Declaration of Justin B. Palmer, Esq.
(Doc. #12-2, Exh. B). Ms. Rhoades is an employee of plaintiff
corporation and the individual responsible for maintaining the
invoices.
Based on the interest rate expressly stated in the
Terms
Conditions,
and
Ms.
Rhoades’
Declaration
provides
a
calculation of the total amount of pre-judgment interest accrued
from the dates owing as $8,695.39.
The Court will grant the
requested pre-judgment interest, and apply the continuing rate
stated in the Terms and Conditions.
Mr. Palmer, along with local counsel, also seeks attorney’s
fees in the amount of $8,083.00 for time spent in pursuing this
action.
A reasonable attorney fee is calculated by multiplying
the number of hours reasonably expended by the reasonable hourly
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rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), and 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
v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.
1988).
The party seeking an award of fees should submit adequate
documentation of hours and rates in support, or the award may be
reduced.
Hensley, 461 U.S. at 433.
Mr. Palmer’s hourly rate is
$380.00 an hour and local counsel’s hourly rate is $370.00.
The
burden is on the fee applicant “to produce satisfactory evidence”
that the rate is in line with those prevailing in the community.
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984).
It is clear that
the applicable prevailing market in this case is the Fort Myers
area, and not Tampa or Utah.
See Doc. #68, p. 8 (citing Olesen-
Frayne v. Olesen, 2:09-cv-49-FTM-29DNF, 2009 WL 3048451, *2 (M.D.
Fla.
Sept.
21,
2009)(prevailing
market
is
the
Fort
Myers
Division)).
Mr. Palmer states that he has worked at his current firm,
Stoel Rives LLP, since 2001, and is currently in the Utah office.
Mr. Palmer did not seek pro hac vice admission and was terminated
on September 6, 2013, for failure to register for mandatory
electronic case filing.
filed by local counsel.
The request for default judgment was
No further information has been provided
to indicate the level of experience for Mr. Palmer, or why he
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should
be
granted
attorney’s
fees
without
having
sought
and
obtained leave to appear in the Middle District of Florida.
Therefore, Mr. Palmer’s request for attorney’s fees will be denied.
Local counsel, Jennifer Hayes Pinder, is at Foely & Lardner LLP in
Tampa, Florida.
The Declaration fails to indicate Ms. Pinder’s
level of experience or the number of years she has been admitted
to practice.
Without a declaration or affidavit in support of Ms.
Pinder’s rate, the $370.00 hourly rate will be reduced to $270.00
an hour.
The Court otherwise finds the 4.9 hours claimed is
reasonable.
Therefore,
attorney’s fees.
the
Court
will
grant
$1,323.00
in
Plaintiff does not seek the costs and expenses
detailed in the billing records attached to the Declaration.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Motion for Default Judgment Against Defendant
AFC Green Electric, Inc. (Doc. #12) is GRANTED IN PART AND
DENIED IN PART.
2. The Clerk shall enter judgment in favor of plaintiff and
against defendant as to Count I as follows:
A. The principal amount of $128,489.70 under the Invoices;
B. Pre-judgment interest in the amount of $8,695.39, on the
unpaid invoices through October 8, 2013, and continuing
at a monthly rate of one and one-half percent through
the date of judgment;
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C. Attorney’s fees in the amount of $1,323.00; and
D. Post-judgment interest on the total amount of principal,
pre-judgment interest and attorney’s fees accruing from
the date of judgment at the current prevailing rate until
paid.
E. The remaining counts are dismissed without prejudice.
3. The Clerk is further directed to terminate all pending
motions and deadlines and to close the file.
DONE and ORDERED at Fort Myers, Florida, this
January, 2014.
Copies:
Counsel of Record
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8th
day of
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