Koerner v. Vigilant Insurance Company

Filing 46

ORDER AND REASONS re 37 Motion for Default Judgment - IT IS ORDERED that Koerner's motion is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of plaintiff, Louis R. Koerner, Jr. , and against defendant, CMR Construction & Roofing, LLC, in the full sum of $497,257.71, plus legal interest from date of judicial demand until paid, and costs. IT IS FURTHER ORDERED that Koerner may file a brief and supporting documentation b y Monday, March 20, 2017 substantiating his claimed attorney's fees and his entitlement to expert witness fees. If no such brief is received, such claims will be waived, final judgment will issue, and the case will be closed. Signed by Judge Lance M Africk on 3/8/2017. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUIS R. KOERNER, JR

CIVIL ACTION

VERSUS

No. 16-13319

VIGILANT INSURANCE COMPANY

SECTION I

ORDER AND REASONS
Before the Court is Louis Koerner’s (“Koerner”) motion 1 for entry of a default
judgment against defendant CMR Construction & Roofing, LLC. Koerner asks the
Court for a judgment that CMR is liable to Koerner in the full sum of $502,545.21, 2
plus legal interest from date of judicial demand until paid, all costs, and reasonable
attorney’s fees in an amount to be determined after further submissions to the Court.
For the following reasons, the motion is granted in part.
I.
Koerner alleges in the second amended complaint that in 2005 he was sold a
“Slate 2.0” roof by CMR. He alleges that CMR represented to him that the Slate 2.0
roof was a traditional slate roof which would outlive Koerner, that the roof was
backed by a 75-year all risk warranty, and that the roof would be properly installed
onto Koerner’s home. According to Koerner, CMR further represented to him that it
would properly remove his existing and damaged roof.

CMR then removed the

damaged roof and installed the Slate 2.0 roof on Koerner’s home.
R. Doc. No. 37.
This amount includes the expert witness fee the plaintiff paid to Ladd P. Ehlinger
in the amount of $5,287.50.

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In 2006, 2008, 2011, and 2012, Koerner allegedly complained to CMR
regarding issues with his new roof, and CMR performed various remedial work. In
2016, however, Koerner learned that the prior roof had not been removed properly,
that the Slate 2.0 roof was not a traditional slate roof as represented to Koerner, and
that Koerner’s home required a new roof.
Shortly thereafter, Koerner submitted a claim to Vigilant Insurance Company
for the cost of the repair work. After Vigilant denied the claim, Koerner sued them
in state court. Vigilant removed the claim, and Koerner subsequently amended his
complaint to assert allegations against CMR. Since that time, Koerner and Vigilant
have filed a joint stipulation dismissing Vigilant without prejudice. CMR, the only
remaining defendant, has yet to file responsive pleadings despite being served several
months ago.
II.
Under Federal Rule of Civil Procedure 55(b), the Court may enter a default
judgment 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 unresponsive defendant must proceed through
two steps. First, the plaintiff must petition the clerk for an 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”).

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Before the clerk may enter the 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.
After the defendant’s default has been entered, the plaintiff may request the
entry of judgment on the default. In that context, the court deems the plaintiff’s wellpleaded factual allegations admitted. See Nishimatsu Const. Co., Ltd. v. Houston
Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). At the same time, the court does not
hold the defaulting defendant “to [have] admitt[ed] facts that are not well-pleaded or
to [have] admitt[ed] conclusions of law.” Id. The default judgment should not be
entered unless the judgment is “supported by well-pleaded allegations and . . . ha[s]
a sufficient basis in the pleadings.” Wooten v. McDonald Transit Associates, Inc., 788
F.3d 490, 498 (5th Cir. 2015) (internal quotation marks omitted).
If the plaintiff’s claim is for a sum certain and the defendant has not made an
appearance in court, the clerk may enter a default judgment. 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. Lewis
v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (per curiam) (internal quotation marks
omitted). The disposition of a motion for the entry of default judgment ultimately
rests within the sound discretion of the court. Mason v. Lister, 562 F.2d 343, 345 (5th
Cir. 1977).

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III.
Koerner has already received an entry of default against CMR from the clerk.
See R. Doc. No. 36. The question is now whether, accepting the well-pled factual
allegations in the complaint as true, Koerner is entitled to a judgment against CMR
for $502,545.21, plus legal interest from date of judicial demand until paid, all costs,
and reasonable attorney’s fees in an amount to be determined after further
submissions to the Court. See R. Doc. No. 37, at 1.
Koerner alleges that CMR is liable because it (1) breached certain express and
implied warranties, (2) breached its contract with Koerner, (3) was negligent, (4)
made material misrepresentations on which Koerner reasonably relied to his
detriment, and (5) sold a roof containing redhibitory defects. Although Koerner
provided summary judgment-type evidence in support of his claims, he did not brief
the claims themselves in his motion. The Court ordered Koerner to file a brief
outlining the elements of each of the claims and demonstrate that the complaint’s
well-pleaded factual allegations satisfy those elements. See R. Doc. No. 44.
The supplemental brief sets forth the elements of Koerner’s claims, and the
Court is satisfied that Koerner is entitled to a default judgment on each of them.
Accordingly, the Court will grant the motion as to liability. With respect to damages,
the Court cannot enter a default judgment without a hearing “unless the amount is
liquidated or easily computable.” See Richardson v. Salvation Army, S. Territory,
USA, 161 F.3d 7 (5th Cir. 1998) (citation omitted). The damages Koerner seeks here
are not liquidated damages. But the Fifth Circuit recognizes that in place of an

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evidentiary hearing, a court “may rely on detailed affidavits or documentary evidence,
supplemented by the judge’s personal knowledge, to evaluate the proposed sum.” See
id. (citation omitted).
Koerner’s requested damages are substantiated by the sworn affidavit and
expert report of his construction expert, Louis Relle, as well as by the unsworn
declaration and expert report of his architectural expert, Ladd Ehlinger. Mr. Relle
inspected the damage to Koerner’s home and estimated the cost of repairing that
damage. He provides a fifty-two page expert report in which he explains his findings
and breaks down the damage estimate by each particular repair job required. See R.
Doc. No. 37-4. The report includes numerous photographs of the damage to Koerner’s
home. Mr. Relle ultimately opines that completion of the entire repair project will
cost $497,257.71. See R. Doc. No. 37-3. Mr. Ehlinger reviewed Mr. Relle’s expert
report and conducted his own inspection of Koerner’s home, reaching the same
conclusions. See R. Doc. No. 37-6. When added to Mr. Ehlinger’s expert fees of
$5,287.50, the total damage estimate calculated by Mr. Relle amounts to $502,545.21.
The Court finds that Koerner has submitted sufficient evidence to support his
$497,257.71 damage claim without the need for an evidentiary hearing. However,
the Court remains unconvinced by the briefing that Koerner is entitled to recover the
$5,287.50 in expert fees he paid to Mr. Ehlinger. Koerner does not explain why he is
entitled to recover expert fees in the first place. Accordingly, a decision as to the
attorney’s fees issue 3 and as to whether Koerner is entitled to recover expert fees will
Koerner is entitled to recover attorney’s fees pursuant to the redhibitory defects
statute. See La. Civ. Code art. 2545.
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be be deferred until the Court has more information. The Court provides a deadline
below by which Koerner should provide the Court with that information if he wishes
to proceed as to those elements of damages. A separate final judgment will be issued
once the expert fee issue and the attorney’s fees issue are decided.
IV.
For the foregoing reasons,
IT IS ORDERED that Koerner’s motion is GRANTED IN PART and
DENIED IN PART.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be
judgment in favor of plaintiff, Louis R. Koerner, Jr., and against defendant, CMR
Construction & Roofing, LLC, in the full sum of $497,257.71, plus legal interest from
date of judicial demand until paid, and costs.
IT IS FURTHER ORDERED that Koerner may file a brief and supporting
documentation by Monday, March 20, 2017 substantiating his claimed attorney’s
fees and his entitlement to expert witness fees. If no such brief is received, such
claims will be waived, final judgment will issue, and the case will be closed.

New Orleans, Louisiana, March 8, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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