Ford Motor Credit Company LLC v. Parks
Filing
29
OPINION AND ORDER granting 27 Motion for Default Judgment as to Amended Complaint. The Clerk shall enter judgment as set forth in the Opinion and Order, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 1/19/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FORD MOTOR CREDIT COMPANY
LLC, f/k/a Ford Motor Credit
Company,
Plaintiff,
v.
Case No: 2:16-cv-105-FtM-99MRM
RONALD PARKS,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Default Judgment as to Amended Complaint (Doc. #27) filed on
December 23, 2016.
respond has expired.
No response has been filed and the time to
The Court finds that an evidentiary hearing
is not required and will render a decision based on the documents
submitted.
I.
On February 5, 2016, plaintiff Ford Motor Credit Company,
LLC, f/k/a Ford Motor Credit Company (plaintiff or Ford Credit)
filed a Complaint (Doc. #1) and is currently proceeding on its
one-count Amended Complaint 1 (Doc. #24) against defendant Ronald
Parks (defendant or Parks) for breach of personal guaranties,
1
The original Complaint (Doc. #1) was dismissed without
prejudice for failure to plead subject-matter jurisdiction. (Doc.
#23.)
wherein Parks guarantied certain indebtedness owed to Ford Credit
by Bi-State Ford Truck Sales, Inc. (the “Dealership”).
Because
defendant failed to respond to plaintiff’s Complaint (Doc. #1), a
Clerk’s Entry of Default (Doc. #18) was entered on June 1, 2016. 2
Plaintiff now moves for the entry of judgment against defendant
for damages, attorneys’ fees, and costs and expenses.
II.
When
a
default
judgment
occurs,
a
plaintiff’s well-pled allegations of fact.
defendant
admits
the
If liability is well
pled, it is established by virtue of a default judgment.
v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).
Buchanan
The mere entry of
a default by the clerk does not in itself warrant the entry of
default by the Court.
Rather the Court must find that there is
sufficient basis in the pleadings for the judgment to be entered.”
GMAC Commercial Mortg. Corp. v. Maitland Hotel Assocs., Ltd., 218
F. Supp. 2d 1355, 1359 (M.D. Fla. 2002) (citation omitted).
A
complaint must state a claim in order for default judgment to be
granted.
Id.
2
Plaintiff did not serve defendant with the Amended
Complaint; however, plaintiff mailed a copy to defendant via U.S.
Mail.
(Doc. #26, Certificate of Service.)
Personal service
pursuant to Federal Rule of Civil Procedure 4 on a party who is in
default for failing to appear is only required if the Amended
Complaint contains “new or additional claims for relief.” Fed.
R. Civ. P. 5(a)(2).
The Amended Complaint here only corrected
jurisdictional allegations and did not include any new or
additional claims.
- 2 -
Deeming all facts in the Amended Complaint as admitted,
beginning in or about December 11, 1990, and again on January 1,
1998, the Dealership 3 executed and delivered to Ford Credit a
Wholesale Agreement whereby the Dealership financed its purchases
of new and used motor vehicles with Ford Credit.
15-16; 24-2, 24-3.)
(Docs. ##24, ¶¶
In consideration of Ford Credit’s agreement
to finance the Dealership’s acquisition of the motor vehicles, the
Dealership granted Ford Credit a security interest in, among other
things, the vehicles, the proceeds from the sale of such vehicles,
and any rebates or refunds owed to the Dealership.
¶ 21, 24-4.)
(Docs. ##24,
Under the terms of the Wholesale Agreements, upon
default, Ford Credit was entitled to accelerate any unpaid balance
and take immediate possession of all property subject to its
security interest.
(Id. at ¶ 23.)
On or about May 24, 1999, Parks executed and delivered to
Ford Credit a Continuing Guaranty.
(Doc. #24-9.)
Under the
Continuing Guaranty, Parks guaranteed payment of the indebtedness
from the Dealership under the Loan Agreement, and agreed that he
would pay the indebtedness upon demand without Ford Credit first
having to proceed against the Dealership.
(Id.)
By signing the
Continuing Guaranty, Parks also guaranteed any losses, costs,
3
The Dealership was engaged in the business of selling new
and used motor vehicles to the public, but is no longer in
business. (Doc. #24, ¶ 3.)
- 3 -
reasonable attorney’s fees, and expenses which Ford Credit may
suffer by reason of Dealership’s default.
On
or
about
March
8,
2006,
the
(Id.)
Dealership
executed
and
delivered to Ford Credit a Master Loan and Security Agreement
(“Master Loan Agreement”), as well as a Loan Supplement to the
Master Loan Agreement (Revolving Line of Credit), which was amended
on or about March 4, 2009. 4
(Docs. ## 24-5 – 24-7.)
Pursuant to
the Loan Agreement, Ford Credit agreed to provide the Dealership
with a revolving line of credit of $150,000.
On
or
about
March
8,
2006,
the
(Doc. #24, ¶ 30.)
Dealership
executed
and
delivered to Ford Credit a Cross-Default Agreement (Doc. #24-8),
which provide that “an Event of Default with respect to any Loan
shall be an Event of Default with respect to all Loans,” and
applied
to
Dealership’s
indebtedness
under
the
Wholesale
Agreement, Loan Agreement, and any other loans that Ford Credit
made thereafter.
(Doc. #24, ¶¶ 35-37.)
Also on March 8, 2006,
Parks executed and delivered to Ford Credit, a second Continuing
Guaranty
(the
“2006
Guaranty”),
guaranteeing
payment
of
the
indebtedness from the Dealership under the Loan Agreement, as well
as costs and reasonable attorney’s fees. 5
(Doc. #24-10.)
4
Collectively, the Master Loan Agreement, Loan Supplement,
and Second Loan Supplement are referred to herein as the “Loan
Agreement.”
5
Collectively, the 1999 and 2006 Continuing Guaranties are
referred to herein as the “Guaranties.”
- 4 -
The Dealership began suffering financial difficulties, and on
February 22, 2010, Parks informed Ford Credit that he intended to
resign the Dealership’s sales and service franchise agreement with
Ford Motor Company and cease all Dealership operations on February
26, 2010.
(Doc. #24, ¶ 49.)
The Dealership’s resignation was an
event of default under the Loan Agreement and, pursuant to the
Cross-Default Agreement, was also a default under the Wholesale
Agreement.
(Id. at ¶ 50.)
Thereafter, Ford Credit sold the
collateral, and after applying the resulting proceedings to the
indebtednesss that the Dealership owed to Ford Credit under the
Loan Agreement, a substantial deficiency remained.
(Id. at ¶ 52.)
On March 8, 2011, October 11, 2011, and January 27, 2015,
Ford Credit demanded, in writing, that Parks pay the past due
amounts pursuant to the Guaranties.
(Doc. #24-11.)
Parks has
failed to do so and now owes Ford Credit in excess of $500,000,
with contractual interest continuing to accrue according to the
express terms of the Loan Agreement. 6
(Doc. #24, ¶¶ 33-34.)
Plaintiff’s Affidavit of Ford Credit in Support of Motion for
Default
Judgment
(Doc.
#20),
attaches
the
loan
documents
referenced in the Amended Complaint and states that the documents
are true, accurate, and complete copies.
6
(Docs. ##20-1 – 20-10.)
Specifically, the Wholesale Agreement contained an interest
rate of 9.5% per annum, post-default; the Loan Agreement contained
an interest rate of 11.25% per annum, post-default. (Id. at ¶¶
58-59.)
- 5 -
Also provided is the Affidavit of Joanna Dickinson, Esq., counsel
for
Ford
Credit
(Doc.
#21),
in
support
of
the
request
for
attorneys’ fees, costs, and expenses.
III.
The elements of a breach of contract cause of action are: (1)
a valid contract, (2) a material breach, and (3) damages.
Havens
v. Coast Florida, P.A., 117 So. 3d 1179, 1181 (Fla. 2d DCA 2013).
Here,
Ford
repayment
of
Credit
the
alleged
that
Dealership’s
Parks
debt,
personally
that
Parks
guaranteed
breached
the
guaranty by refusing to pay that debt, and that the Dealership and
Parks owes Ford Credit more than $500,000.
Thus, the Court finds
that plaintiff has adequately pled a breach of guaranty, which
allegations are deemed admitted, supporting the entry of a default
judgment against defendant.
A.
Damages
With regard to damages, plaintiff submitted an Affidavit of
K. Pamela Smith, Status Supervisor employed by Ford Credit whose
duties include overseeing the financial aspects of Ford Credit’s
response following default by a dealership.
Affidavit”.)
(Doc. #20, “Smith
In the Smith Affidavit, Ford Credit asserts a claim
of $531,157.59, excluding the attorney’s fees and costs incurred
in seeking enforcement of the Guaranties.
Plaintiff seeks damages
in the form of unpaid advances, unpaid past due interest and flat
charges, accrued contractual interest, outstanding indebtedness,
- 6 -
and expenses incurred related to the default and sale of the
collateral.
(Id. at ¶ 58.)
Specifically, as of August 15, 2016,
plaintiff asserts the following is due and owing:
Unpaid advances made under the $164,922.23
Wholesale Agreement
Unpaid past due interest and $30,535.29
flat
charges
under
the
Wholesale
Agreement
through
March 8, 2011
Accrued contractual interest $1,355.17
under the Wholesale Agreement
from March 8, 2011 to April 6,
2011
Accrued contractual interest $84,037.36
under the Wholesale Agreement
from April 6, 2011 to August 15,
2016 7
Outstanding indebtedness under $146,373.96
the Loan Agreement
Unpaid past due interest under $11,079.14
the
Loan
Agreement
through
March 8, 2011
Accrued contractual interest $89,653.44
under the Loan Agreement from
March 8, 2011 to August 15,
2016 8
7
Contractual interest continues to accrue on the amount due
under the Wholesale Agreement at the annual post-default rate of
9.5% from August 16, 2016 to the date of entry of judgment (a per
diem rate of $42.92).
8
Contractual interest continues to accrue on the amount due
under the Loan Agreement at the annual post-default rate of 11.25%
from August 15, 2016 to the date of entry of judgment (a per diem
rate of $45.12).
- 7 -
Expenses incurred related to $3,201.00
the default and the sale of the
collateral
TOTAL
$531,157.59
Defendant has failed or refused to pay the amounts due and
owing, and is indebted to plaintiff in the amount of $531,157.59
under the Guaranties as of August 15, 2016.
The Court will grant
the
apply
requested
pre-judgment
interest,
and
the
combined,
continuing per diem rate stated in the agreements of $88.04 ($42.92
+ $45.12) through the date of entry of judgment.
B.
Attorneys’ Fees
Attorney Dickinson, who is admitted pro hac vice, along with
local counsel in Tampa, seek attorneys’ fees in the amount of
$15,856.80 for time spent in pursuing this action.
Attorney
Dickinson is with the law firm of Phillips Lytle in Buffalo, New
York, which commenced its work on this matter in 2011 beginning
with pre-suit demands, and through July of 2016 had performed 59.3
hours of work in categories as set forth in the Affidavit.
#21, ¶ 7, “Dickinson Affidavit”.)
Affidavit
states
that
the
(Doc.
Also in support, the Smith
Guaranties
allow
a
recovery
of
a
reasonable attorneys’ fees of 15% of any judgment if permitted by
law, costs, and expenses, which would entitle Ford Credit to
$79,673.64
attorneys’
fees
($531,157.59
- 8 -
x
15%
=
$79,673.64);
however, an award of $19,362.02 for attorneys’ fees, costs, and
expenses is all that is requested.
(Doc. #20, ¶¶ 63-68.)
A reasonable attorney fee is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly 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.
Although
no
time
sheets
were
submitted
in
support,
the
Dickinson Affidavit details the categories of tasks performed and
states that Phillips Lytle’s hourly rate for attorneys working on
this matter ranged from $230.00 to $380.00, and $100.00 to $170.00
per hour for paralegal time.
(Doc. #21, ¶ 10.)
The work outlined
represents 35.3 attorney hours and 24.0 paralegal hours.
#21, ¶ 8.)
satisfactory
The burden is on the fee applicant “to produce
evidence”
that
prevailing in the community.
n.11 (1984).
(Doc.
the
rate
is
in
line
with
those
Blum v. Stenson, 465 U.S. 886, 896
It is clear that the applicable prevailing market
in this case is the Fort Myers area, and not Tampa or New York.
See
Olesen-Frayne
v.
Olesen,
2:09-cv-49-FTM-29DNF,
- 9 -
2009
WL
3048451, at *2 (M.D. Fla. Sept. 21, 2009) (prevailing market is
the Fort Myers Division)).
The Court finds that the 59.3 hours of work expended on this
case from 2011 through July of 2016 9 is reasonable given the level
of complexity and filings in this matter, as well as pre-suit
demands sent to defendant.
The Court also finds that given the
number of hours (59.3) and total amount of attorneys’ fees incurred
($15,856.80), the combined average attorney and paralegal rate
charged is $267.00 an hour, which the Court finds is reasonable
and in line with the prevailing market rate.
The motion will be
granted for the requested amount.
C.
Costs and Expenses
Attorney Dickinson’s Affidavit was also filed in support of
a request for $3,505.22 in costs and expenses.
(Doc. #21, ¶ 12.)
The Affidavit only briefly states that this amount “includes
computerized
database
research,
charges, and copy fees.”
filing
(Id.)
fees,
Federal
Express
No further documentation is
submitted, but the Court finds that the costs are allowable because
they are not otherwise limited by the Loan Agreement and Guaranties
to statutory costs.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
9
Although work on this matter continued past July of 2016,
plaintiff only requests attorneys’ fees through this month.
- 10 -
1.
Plaintiff’s Motion for Default Judgment as to Amended
Complaint (Doc. #27) is GRANTED.
The Clerk shall enter judgment
on the Amended Complaint as follows:
a.
In favor of plaintiff and against defendant in the
amount of $531,157.59, plus continuing interest in the
combined per diem rate of $88.04 from August 15, 2016
through the date of entry of judgment;
b.
Attorneys’ fees in the amount of $15,856.80 and
c.
Costs and expenses in the amount of $3,505.22.
2.
The Clerk is further directed to terminate all pending
matters and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2017.
Copies:
Counsel of Record
- 11 -
19th
day
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?