Augusta Professional Building, LLC v. Neosom Clinics, P.A. et al

Filing 14

ORDER granting 13 Motion for Default Judgment in the amount of $93,174.33, and closing this case. Signed by Judge J. Randal Hall on 09/27/2011. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
AUGUSTA PROFESSIONAL BUILDING,
LLC,
Plaintiff,
V.
NEOSOM CLINICS, P.A., AND
BARRY KIMBERLEY,
Defendants.

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CV 111-059

ORDER

Before the Court in the captioned matter is Plaintiff's motion
for default judgment. (Doc. no. 13.) The motion is GRANTED.
This case arises out of Defendants' failure to pay rent on a
commercial lease for premises located at 3624 J. Dewey Gray Circle,
Suite 301, Augusta, Georgia. Under the parties' written lease
agreement, Defendant Neosom Clinics, P.A. ("Neosom") leased the
premises from Plaintiff for a term beginning April 1, 2009 and ending
March 31, 2014. (Compl. ¶ 7.) Neosom was obligated to pay Plaintiff
monthly rent of $3,778.83 during the first year, with the monthly rent
to adjust annually thereafter. (Id. ¶ 9.) To facilitate execution of
the lease agreement, Defendant Kimberley executed a Guarantee
unconditionally guaranteeing full performance by Neosom (Id ¶ 8
Neosom paid rent initially, but failed to pay rent for the period
May 2010 through January 2011, accruing an outstanding rental balance
of $34,443.03.

(Id. ¶j 10, 16, 22.)

Kimberley made no payments on

Neosom's behalf. Owing to Defendants' default, Plaintiff relet the
premises to a third party, Augusta Primary Care Services, for the term
of January 31, 2011 through March 31, 2014. (Id. 111 11, 14.) The
difference between the rent contracted for with Neosom and the amount
contracted for with Augusta Primary Care Services during this period
totals $30,379.56. (Id 111 15, 23.) In connection with the relet,
Plaintiff incurred $9,090.00 in remodeling costs; $669.41 in clean up
costs; and $6,305.00 in broker commission costs. (Id. 111 17, 18, 24.)
Plaintiff filed its complaint with this Court on April 25, 2011,
seeking to recover back rent, the rent deficiency, and relet costs for
a total of $80,887.00. (Id. ¶ 25; Doe. no. 13-1 ¶ 7.) Plaintiff also
claims that, pursuant to the lease agreement, it is entitled to 7.25
percent interest on the total unpaid balance (compl. ¶ 19; 28), and
reasonable attorney's fees (id. ¶ 20). Defendants did not respond,
and an entry of default was entered on July 7, 2011. (Doe. no. 12.)
On July 8, 2011, Plaintiff filed its motion for default judgment.
(Doc. no. 13.) In support of this motion, Plaintiff filed the
affidavit of its attorney, Mr. Davis A. Dunaway, affirming the total
unpaid balance. (Doe. no. 13-1.)
"The entry of a default judgment is committed to the discretion
of the district court . . . ." Hamm v. DeKalb County, 774 F.2d 1567,
1576 (11th Cir. 1985) (cited source omitted). In consideration
thereof, this Court must investigate the legal sufficiency of the
allegations of Plaintiff's complaint. See Bruce v. Wal-Mart Stores,
Inc., 699 F. Supp. 905, 906 (N.D. Ga. 1988).

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First and foremost, the Court has subject matter jurisdiction
over Plaintiff's claims in accordance with 28 U.S.C. § 1332(a). The
parties are completely diverse: Plaintiff is a Delaware limited
liability company, Defendant Neosom is a Minnesota corporation with
its principal place of business in Minnesota, and Defendant Kimberley
is a resident of Minnesota. (Compl. 11 1-4.) Further, the amount in
controversy exceeds $75,000.
The Court finds that Plaintiff has stated facts sufficient to
entitle it to recover against Defendants for breach of the lease
agreement. Upon consideration of the complaint, the motion for
default judgment, the supporting affidavit, and applicable law, the
Court finds that Plaintiff is entitled to an award of damages as
follows:

Unpaid Rent, May 2010 to January 2011:

$34,443.03

Rent Deficiency, February 2011 to March 2014:

$30,379.56

Costs Incurred in Reletting the Premises:

$16,064.41

Interest

$ 3,794.211

Attorney's Fees

$ 8,493.122
TOTAL:

$93,174.33

The Clerk is instructed to ENTER DEFAULT JUDGMENT against Defendants
Neosom Clinics, P.A.

and Barry Kimberley and in favor of Plaintiff

' Interest calculated at 7.25 percent per annum for the period February 2, 2011
through September 26, 2011 (64.7 percent of one year) on the total unpaid balance
($80,887.00).
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Attorney's fees calculated pursuant to O.C.G.A. § 13-1-11, i.e. 15 percent of
the first $500.00 of the total unpaid balance plus interest ($ 84 , 6 8 1. 2 1 ) and 10
percent of the remainder ($84,681.21 - $500.00 = $84,181.21).

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Augusta Professional Building, LLC in the amount of $93,174.33, and
CLOSE THIS CASE.
ORDER ENTERED at Augusta, Georgia, this

77day of September,

2011.

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HON
J. RANDAZ HALL
UNITED STATES DISTRICT JUDGE
SOUT
DISTRICT OF GEORGIA

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