Utila Dive Ventures et al v. Bay Island Yacht Restoration, LLC et al

Filing 39

DEFAULT JUDGMENT entered in favor of Troy Bodden Marine Service, Inc. against Bay Island Yacht Restoration, LLC in the amount of $105,721.79. Signed by Chief Judge Sarah S. Vance on 9/8/2011.(rll, ) Modified on 9/8/2011 to edit doc type (rll, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

UTILA DIVE VENTURES, ET AL.

CIVIL ACTION

VERSUS

NO: 10-2621

BAY ISLAND YACHT RESTORATION,
LLC, ET AL.

SECTION: R(3)

ORDER AND REASONS
Plaintiffs move the Court to enter a default judgment
against defendant Bay Island Yacht Restoration, LLC.1

Because

Utila Dive Ventures has presented evidence that Bay Island Yacht
Restoration’s breach of contract resulted in damages, and the
amount is capable of mathematic calculation, the Court GRANTS
plaintiffs’ motion without an evidentiary hearing and enters a
default judgment against Bay Island Yacht Restoration, LLC in the
amount of $105,21.79.

I.

BACKGROUND
Bay Island Restoration (“Bay Island”) entered into a

contract with Utila Dive Ventures (“Utila”) in which Bay Island
agreed to paint the vessel M/V Utila Aggressor II.

The contract

outlined the work to be performed by Bay Island, contained a
payment schedule and specified the date of completion.

Pursuant

to the terms of the contract plaintiffs were to pay a total sum
1

R. Doc. 31.

of $240,000 to Bay Island for materials, labor and insurance
costs.

The painting job was to be finished in ten weeks, on

April 19, 2010.

From February 23, 2010 through June 11, 2010,

plaintiffs made eight payments to Bay Island totaling $223,000.
Bay Island did not complete painting the vessel by the date
designated in the contract.

Plaintiffs allege that on June 14,

2010, Arvin Dilbert, owner of Bay Island, requested additional
funds from Bodden.

Plaintiffs assert that when they refused to

provide additional money until painting was completed, Dilbert
walked off the job taking all of his equipment with him.

Troy

Bodden, owner of Utila, then flew to Honduras, where the vessel
was located, to inspect it, and alleges that much of the work Bay
Island completed was improperly performed.

Bodden hired Bayou

Yacht Painting (“Bayou Yacht”) to redo and complete the painting
job.

Plaintiffs paid Bayou Yacht $122,721.79 for this work.
Plaintiffs filed a complaint seeking reimbursement from

defendant for the damages resulting from their breach of
contract.

Defendants Bay Island and Dilbert were served on

August 27, 2010.

Dilbert filed an answer to plaintiffs’

complaint on October 25, 2010, but to date, Bay Island has not
filed an answer.

Plaintiffs moved for an entry of default

against Bay Island, and on September 27, 2010, default was
entered.2

2

A second entry of default was entered against Bay

R. Doc. 11.
2

Island on December 2, 2010.3

Plaintiffs now move for an entry of

default judgment against Bay Island.

II.

STANDARD
Under Federal Rule of Civil Procedure 55(b), a default

judgment may be entered against a party when it fails to plead or
otherwise respond to the plaintiff’s complaint within the
required time period.

Fed. R. Civ. P. 55(b).

A plaintiff who

seeks a default judgment against an uncooperative defendant must
proceed through two steps.

First, the plaintiff must petition

the court for the entry of default, which is simply “a notation
of the party’s default on the clerk’s record of the case.

Dow

Chem. Pac. Ltd. v. Rascator Mar. S.A., 782 F.2d 329, 335 (2d Cir.
1986); see also United States v. Hansen, 795 F.2d 35, 37 (7th
Cir. 1986) (describing the entry of default as “an intermediate,
ministerial, nonjudicial, virtually meaningless docket entry”).
Before the clerk may enter the defendant’s default, the plaintiff
must show “by affidavit or otherwise” that the defendant “has
failed to plead or otherwise defend.”

Fed. R. Civ. P. 55(a).

Beyond that requirement, however, the entry of default is largely
mechanical.
Once default has been entered, the plaintiff’s well-pleaded
factual allegations are deemed admitted.
3

R. Doc. 23.
3

See Nishimatsu Const.

Co. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
At the same time, the defaulting defendant “is not held to admit
facts that are not well-pleaded or to admit conclusions of law.”
Id.

After the defendant’s default has been entered, the

plaintiff may request the entry of judgment on the default.

If

the plaintiff’s claim is for a sum certain and the defendant has
not made an appearance in court, the request for a default
judgment may be directed to the clerk.

Fed. R. Civ. P. 55(b)(1).

In all other cases, “the party must apply to the court for a
default judgment.”

Fed. R. Civ. P. 55(b)(2).

No party is

entitled to a default judgment as a matter of right.
Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (per curiam).

Lewis v.
The

disposition of a motion for the entry of default judgment
ultimately rests within the sound discretion of the district
court.

Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977).

III. DISCUSSION
A. Jurisdiction and Choice of Law
Before entering judgment, the district court must “look into
its jurisdiction both over the subject matter and the parties.”
Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d
322, 324 (5th Cir. 2001) (quoting Williams v. Life Sav. & Loan,
802 F.2d 1200, 1203 (10th Cir. 1986)).

4

Judgment entered in the

absence of jurisdiction is void, and the court must therefore
refrain from entering judgment if its jurisdiction is uncertain.
In this case, subject matter jurisdiction is founded upon
diversity of citizenship.

See 28 U.S.C. § 1332.

Defendant Arvin

Dilbert is an alleged resident of St. Tammany Parish, Louisiana;
defendant Bay Island Yacht Restoration, a limited liability
company, is an alleged resident of Lacombe, Louisiana; plaintiff
Utila Dive Ventures is an alleged resident of Honduras, and the
amount in controversy exceeds $75,000.4

Service of process

appears to have been properly executed on defendant Bay Island
Yacht Restoration under the Federal Rules of Civil Procedure.
The Court therefore finds that it has jurisdiction to enter this
default judgment.
Plaintiff alleges that Louisiana law applies to this case
and governs the issue of damages.

Because no one has

demonstrated that Honduran law applies, or that it is different
from Louisiana law, the Court will apply the law of Louisiana.
B. Entry of Default Judgment
The Court turns to whether a default judgment may be entered
against defendant Bay Island.

The record shows that Bay Island

Yacht Restoration was served with process on August 27, 2010, but
has failed to plead or otherwise defend against Utila’s claims.
Although judgments by default are generally disfavored, Lindsey

4

R. Doc. 1.
5

v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998), the Court
finds that Bay Island’s failure to appear has made it impossible
to achieve the “just, speedy, and inexpensive disposition” of
this case on the merits.

Sun Bank v. Pelican Homestead & Sav.

Ass’n, 874 F.2d 274, 276 (5th Cir. 1989).

The record does not

reveal any excuse for defendant’s failure to appear.
Accordingly, the Court will enter a default judgment against
defendant Bay Island Yacht Restoration.
C. Breach of Contract and Damages
Taking the allegations of the complaint as true, the Court
finds that the plaintiffs state a prima facie case of breach of
contract.

Under Louisiana law, if an undertaker fails to do the

work he has contracted to do, or if he does not execute it in the
manner and at the time he has agreed to do it, he is liable in
damages for the losses that may ensue from his non-compliance
with his contract. LA. CIV. CODE art. 2769.

A failure to perform

an obligation results from nonperformance, defective performance,
or delay in performance.

LA. CIV. CODE art. 1994.

Here,

plaintiffs allege that plaintiffs and Bay Island entered into a
valid contract, that Bay Island failed to timely perform that
contract and that Bay Island’s work was defective and had to be
completed and redone by another company.

The Court finds that

plaintiffs have made a prima facie case that Bay Island breached
the contract with plaintiffs.
6

“A default judgment is a judgment on the merits that
conclusively establishes the defendant’s liability.”

United

States v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987).
A default judgment does not, however, establish the amount of
damages.

Id.; see also Howard v. Weston, 354 F. App’x 75, 76

(5th Cir. 2009) (“After a default judgment, the plaintiff’s wellpleaded factual allegations are taken as true, except regarding
damages.”).

The Fifth Circuit has stated that although “[a]s a

general proposition, in the context of a default judgment,
unliquidated damages normally are not awarded without an
evidentiary hearing[,] [t]hat rule . . . is subject to an
exception where the amount claimed is a liquidated sum or one
capable of mathematical calculation.”
307, 310 (5th Cir. 1993).

James v. Frame, 6 F.3d

A sum capable of mathematical

calculation is one that can be “computed with certainty by
reference to the pleadings and supporting documents alone.”

Id.

at 311 (citation omitted).
Here, the Court finds that the amount defendant owes
plaintiff as a result of the breach of contract is capable of
mathematical calculation.

Utila provided a copy of the contract

between Utila and Bay Island,5 copies of negotiated checks from
plaintiffs to the defendant evidencing payments for work that was

5

R. Doc. 31-6.
7

supposed to be performed by defendant.6

Utila also included the

declaration of Troy Bodden, the owner of Utila, testifying that
he made payments to Arvin Dilbert, the owner of Bay Island,
totaling $223,000.7

Further, Utila submitted the affidavit of

Patrick Dupuy, the owner of Bayou Yacht Painting, testifying that
Troy Bodden paid him $122,721.798 to redo and complete the
painting job that Bay Island started, the contract between Troy
Bodden and Bayou Yacht Painting,9 and copies of payment receipts
for that work.10
A party injured by a contractual breach is entitled to be
placed in the same position as he would have been in had the
contract been properly performed. LA. CIV. CODE art. 2769; Maxwell
v. Cayse, 54 So.3d 118, 121 (La. Ct. App. 2010).

If the contract

had been properly performed, Utila would have paid Bay Island
$240,000.

Utila made payments to Bay Island in the amount of

$223,000 and paid Bayou Yacht Painting $122,721.79 to redo and
finish the job, for a total cost of $345,721.79.

The difference

between the total cost ($345,721.79) and the amount Utila would
have paid if the contract had been properly performed ($240,000)

6

R. Doc. 31-7.

7

R. Doc. 31-8.

8

R. Doc. 31-9.

9

R. Doc. 31-10.

10

R. Doc. 31-11.
8

is $105,721.79.

The Court finds therefore that Bay Island owes

Utila damages in the amount of $105,721.79.

Because this amount

is capable of mathematical calculation, the Court grants
plaintiffs’ motion without an evidentiary hearing.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs’

motion for default judgment against Bay Island Yacht Restoration
in the amount of $105,721.79.

New Orleans, Louisiana, this 8th day of September, 2011.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

9