BRANCH BANKING AND TRUST COMPANY v. POPLAR DEVELOPMENT COMPANY LLC et al
Filing
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ORDER denying without prejudice as premature 27 Motion for Default Judgment. Ordered by Judge C. Ashley Royal on 5/29/13 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BRANCH BANKING & TRUST
COMPANY, as successor‐in‐interest
to the Federal Deposit Insurance
Corporation, as receiver for Colonial
Bank,
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Plaintiff,
v.
CIVIL ACTION
No. 5:12‐CV‐457 (CAR)
POPLAR DEVELOPMENT
COMPANY, LLC; RAHIL KAZI;
DAVID D. THOMPSON; G. SCOTT
THOMPSON; GATEWAY/75, LLC;
and 490 POPLAR PARTNERS, LLC,
Defendants.
_____________________________
ORDER ON MOTION FOR DEFAULT JUDGMENT
Plaintiff Branch Banking & Trust Company, as successor‐in‐interest to the
Federal Deposit Insurance Company, as receiver for Colonial Bank, (“BB&T”) filed the
instant action on November 19, 2012, seeking to recover unpaid principal, interest, and
attorney’s fees on a promissory note executed by Defendant Poplar Development
Company, LLC (“Poplar Development”). All other Defendants, including 490 Poplar
Partners, LLC (“Poplar Partners”), “[j]ointly and severally unconditionally and
irrevocably” guaranteed the note, which totaled $3,055,563.53 as of November 16, 2012,
with interest and attorney’s fees that continue to accrue in the amount of $445.12 per
day. 1 Poplar Partners was served with process through its registered agent, Defendant
G. Scott Thompson, but failed to answer or otherwise respond. Now, after entry of
default, BB&T moves the Court to enter default judgment against Poplar Partners.
Having considered this request and binding precedent, BB&T’s Motion for Default
Judgment [Doc. 27] is DENIED WITHOUT PREJUDICE as premature.
DISCUSSION
Generally, district courts have the authority to enter default judgment against a
defendant who fails to answer or otherwise defend on the basis of a plaintiff’s well‐pled
complaint.2 This general rule, however, is not without exception. In Frow v. De La Vega,3
the United States Supreme Court held that in cases involving more than one defendant,
a judgment should not be entered against a defaulting party alleged to be jointly liable
until the matter has been adjudicated with regard to all defendants.4 Although some
circuits only apply Frow in cases of joint liability, in this circuit, it is “sound policy” to
refrain from ruling “when defendants are similarly situated, but not jointly liable.”5
This principle avoids inconsistent judgments and affirms the Eleventh Circuit’s “strong
BB&T Compl. at ¶ 22 [Doc. 1 at 6].
Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).
3 82 U.S. 552 (1872).
4 Id. at 554.
5 Gulf Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499, 1512 (11th Cir. 1984). But see Whelean v.
Abell, 953 F.2d 663, 674 (D.C. Cir. 1992) (narrowly construing Frow); Frazetta v. Turner & Newall, Ltd., 797
F.2d 151, 154 (3d Cir. 1986) (interpreting Frow to preclude only logically inconsistent judgments); In re
Uranium Antitrust Litig., 617 F.2d 1248, 1257 (7th Cir. 1980) (refraining from applying Frow where
different results as to different parties are not logically inconsistent).
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preference that cases be heard on the merits.”6 Thus, if a plaintiff prevails against the
non‐defaulting defendants, it is then entitled to judgment against the defaulting as
defendant as well.7 Conversely, if the non‐defaulting parties prevail, in most cases, the
judgment will accrue to the defaulting defendant.8
In the instant case, BB&T seeks an award of damages for breach of guarantee
against Poplar Partners and four other guarantors who are jointly and severally liable
for the entire unpaid amount of the promissory note. BB&T also seeks attorney’s fees
against all Defendants. Thus, entering default judgment against Poplar Partners raises
the possibility of inconsistent judgments should the non‐defaulting guarantors and
Poplar Development successfully defend against BB&T’s claims. Accordingly, BB&T’s
Motion for Default Judgment is denied without prejudice as premature. BB&T may file
a renewed motion for default judgment after the case is resolved against the remaining
defendants.
CONCLUSION
For the reasons set forth above, BB&T’s Motion for Default Judgment [Doc. 27] is
DENIED WITHOUT PREJUDICE as premature. BB&T may file a renewed motion for
default judgment after the case is resolved against the remaining, non‐defaulting
defendants. The Clerk’s entry of default remains pursuant to Federal Rule of Civil
See Owens v. Benton, 190 F. App’x 762, 763 (11th Cir. 2006).
Frow, 82 U.S. at 554.
8 Id.
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Procedure 55(a).
SO ORDERED, this 29th day of May, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
BBP/lmh
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