MB Financial Bank, N.A. v. Sneed III
AMENDED ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Doc. 12 ). Signed by Judge Timothy S. Black on 6/26/17. (gs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
MB FINANCIAL BANK, N.A.,
Case No. 1:16-cv-531
Judge Timothy S. Black
MALCOLM H. SNEED, III.,
AMENDED ORDER GRANTING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT (Doc. 12)
This civil action is before the Court on Plaintiff’s motion for default judgment.
(Doc. 12). Defendant did not respond.
Plaintiff filed a Complaint on May 6, 2016. (Doc. 1). Defendant was served with
a copy of the summons and complaint on May 25, 2016. (Doc. 9). Pursuant to Federal
Rule of Civil Procedure 12(a)(1)(A), Defendant was required to file and serve his answer
no later than June 15, 2016. To date, no responsive pleading has been filed or served.
On June 17, 2016, the Clerk properly entered default. (Doc. 11). Subsequently, Plaintiff
filed the instant motion for default judgment. (Doc. 12).
Plaintiff loaned S3 Pump Services, Inc. (“Borrower”), a high pressure oil pumping
service company, a total of $3,130.653.60 to purchase certain equipment for its business.
The equipment consisted of three frac pumps. (Doc. 12-3 at ¶ 3). Defendant is a
sophisticated business man who is the owner and the President of the Borrower.
Defendant executed the Master Lease and Schedule Nos. 001 and 013. (Doc. 1-2, 1-3,
and 1-4; Doc. 12-3 at ¶ 4).
Schedule 001 required payment of $42,006.22 for 48 months for a total of
$2,016,298.56 and Schedule 013 required payment of $42,006.22 for 48 months for a
total of $1,114,355.04, for a combined total amount due under the Contract as of the date
of each Schedule of $3,130.653.60. (Doc. 1-2, 1-3, 1-4; Doc. 12-3 at ¶ 6). The Contract
contains the terms and conditions for the repayment of Plaintiff’s financing. An excerpt
from the Master Lease, related to Plaintiff’s entitlement to attorneys’ fees, litigation
expenses, and costs, provides as follows:
20. REMEDIES. Lessor may exercise one or more of the following
remedies upon an Event of Default:…(xi) recover form Lessee all
amounts incurred by Lessor in enforcing its rights and remedies
hereunder, including, but not limited to, Lessor’s…appraisal costs,
…filing fees, reasonable attorneys’ fees, and reasonable internal
(Doc. 1-1 at § 20).
Defendant also executed a certain personal guaranty, wherein he absolutely,
irrevocably, continuously and unconditionally guaranteed, among other things, the full
and prompt payment of all amounts due from Defendant’s Company to Plaintiff and full
and prompt compliance with all of the terms and conditions of the Contract
(“Defendant’s Guaranty”). (Doc. 1-1; Doc. 12-3 at ¶ 5). Defendant’s Guaranty also
specifically provides that:
Guarantor will pay all costs, expenses, and fees, including but not
limited to, all attorneys’ fees, incurred by Lessor in enforcing or
attempting to enforce this Guaranty, whether the same is enforced
by suit or otherwise, and all amounts recoverable by law, including,
but not limited to, interest on any unpaid amounts due under this
(Id. at § 7(b)).
Borrower and Defendant made its last payment in February 2016. (Doc. 12-3 at
¶ 10). The remaining monthly payments due under Schedule No. 001 is $504,074.64,
which represents 12 monthly payments of $42,006.22 and under Schedule No. 013 is
$650,040.44, which represented 28 monthly payments of $23,215.73, for a total
remaining payments due of $1,154,115.08. (Id.)
Defendant Company filed for bankruptcy under Title 11 of the Bankruptcy Code,
and remains in possession and use of the Equipment. (Doc. 12-3 at ¶ 11). Plaintiff was
required to retain local counsel to enable Plaintiff’s counsel, Sherry Lowe Johnson, to
represent, protect and enforce Plaintiff’s rights and interest in the bankruptcy
proceedings. (Id.) In addition, Plaintiff retained counsel to represent and protect its
interest in this action against Defendant as the guarantor of the commercial debt. (Doc.
12-3 at ¶ 11). Additionally, Plaintiff is contractually entitled to recover all of its
attorneys’ fees, costs, and expenses related to enforcing the Contract and Defendant’s
Guaranty. (Doc. 1-1 at § 20).
STANDARD OF REVIEW
Applications for default judgment are governed by Fed. R. Civ. P. 55(b)(2).
Following the clerk’s entry of default pursuant to Fed. R. Civ. P. 55(a) and the party’s
application for default under Rule 55(b), “the complaint’s factual allegations regarding
liability are taken as true, while allegations regarding the amount of damages must be
proven.” Morisaki v. Davenport, Allen & Malone, Inc., No. 2:09cv298, 2010 U.S. Dist.
LEXIS 86241, at *1 (E.D. Cal. Aug. 23, 2010) (citing Dundee Cement Co. v. Howard
Pipe & Concrete Products, 722 F.2d 1319. 1323 (7th Cir. 1983)).
While liability may be shown by well-pleaded allegations, this Court is required to
“conduct an inquiry in order to ascertain the amount of damages with reasonable
certainty.” Osbeck v. Golfside Auto Sales, Inc., No. 07-14004, No. 07-14004, 2010 U.S.
Dist. LEXIS 62027, at *5 (E.D. Mich. June. 23, 2010). To do so, the civil rules “require
that the party moving for a default judgment must present some evidence of its damages.”
Mill’s Pride, L.P. v. W.D. Miller Enter., No. 2:07cv990, 2010 U.S. Dist. LEXIS 36756, at
*1 (S.D. Ohio Mar. 12, 2010).
Defendant having defaulted, the factual allegations in the complaint, except those
related to the amount of damages, are deemed true. Antoine v. Atlas Turner, Inc., 66 F.3d
105, 110 (6th Cir. 1995). To ascertain an uncertain sum of damages, Rule 55(b)(2)
“allows but does not require the district court to conduct an evidentiary hearing.”
Vesligaj v. Peterson, 331 F. App’x 351, 354-55 (6th Cir. 2009). An evidentiary hearing
is not required if the Court can determine the amount of damages by computation from
the record before it. HICA Educ. Loan Corp. v. Jones, No. 4:12cv962, 2012 U.S. Dist.
LEXIS 116166, at *1 (N.D. Ohio Aug. 16, 2012). The Court may rely on affidavits
submitted on the issue of damages. Schilling v. Interim Healthcare of Upper Ohio
Valley, Inc., No. 206-cv-487, 2007 U.S. Dist. LEXIS 3118, at *2 (S.D. Ohio Jan. 16,
Plaintiff incurred damages of $1,154,115.08, $504,074.64 on contract 001 and
$650,040.44 on contract 013. (Doc. 12-3 at ¶ 10).
Plaintiff has also incurred attorneys’ fees in the amount of $15,599.00. Plaintiff’s
attorney, Sherry Lowe has been representing creditors in areas of commercial litigation
and bankruptcy for nearly 25 years. (Doc. 12-2 at ¶ 2). She charges $430 per hour. (Id.)
Paul Wilhelm has been practicing law since 2002 and assisted Ms. Lowe as local counsel.
(Id. at ¶ 4). Mr. Wilhelm’s hourly rate is $420. (Id. at ¶ 7). Ms. Johnson spent a total of
35.30 hours working on the case ($15,179.00) and Mr. Wilhelm did 1 hour of work
($420.00), for a total of $15,599.00. The Court find that the hours expended by
Plaintiff’s counsel and summarized in detailed time reports substantiate the fees
requested in this case. (Doc. 12-2 at 9-12).
Plaintiff’s litigation expenses total $5,012.16 for standard litigation items
including filing fees, service fees, and the appraisal of equipment. (Doc. 12-2).
Accordingly, reasonable fees and expenses total $20,611.16.
Therefore, as established by the facts set forth in the Complaint, as well as
Plaintiff’s declaration and counsel’s fee application, Plaintiff is entitled to damages
against the Defendant in the amount of $1,174,726.24 ($1,154,115.08 (contract damages)
+ $20,611.16 (fees and expenses)).
Accordingly, for these reasons, Plaintiff’s motion for default judgment (Doc. 12)
is GRANTED. The Clerk shall enter Judgment in favor of Plaintiff, MB Financial Bank,
N.A., and against Defendant in the amount of $1,174,726.24, plus interest at the legal rate
from the date of judgment, and any subsequent additional costs, expenses and attorneys’
fees, until the entire judgment has been paid in full.
This civil action is TERMINATED on the docket of this Court upon entry of the
IT IS SO ORDERED.
s/ Timothy S. Black
Timothy S. Black
United States District Judge
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