SYNOVUS BANK v. HIGHWAY SEVENTY PARTNERS et al

Filing 57

ORDER denying 52 Motion for Entry of Judgment under Rule 54(b) and vacating 51 Order Granting Default Judgment. Signed by Judge S. Thomas Anderson on 12/18/14. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

SYNOVUS BANK, formerly known as
COLUMBUS BANK AND TRUST
COMPANY, as successor in interest
through name change and by merger
with TRUST ONE BANK
Plaintiff,
v.
HIGHWAY SEVENTY PARTNERS, a
Tennessee general partnership, GLEN
E. BASCOM, SR., GLEN E. BASCOM
II, and CHRISTOPHER D. MONTESI
Defendant.

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Case No. 2:14-cv-02340-STA-cgc

ORDER DENYING MOTION FOR 54(b) CERTIFICATION AND VACATING
DEFAULT JUDGMENT

BACKGROUND
Before the Court is Plaintiff Synovus Bank’s (“Synovus”) Motion for Rule 54(b)
Certification as to Default Judgment Against Defendant Christopher Montesi. (ECF No. 52).
The Clerk of Court entered default as to Defendant Christopher D. Montesi (“Montesi”) on July
29, 2014. (ECF No. 37). Synovus then filed a Motion for Default Judgment as to Christopher D.
Montesi on July 30, 2014 (ECF No. 38), and the Court granted that Motion on October 14, 2014.
(ECF No. 51). Subsequently, Synovus filed the instant Motion, asking the Court to certify its
judgment against Defendant Montesi under Rule 54(b). In reviewing that Motion, the Court
determined that it should not have granted the Plaintiffs’ Motion for Default Judgment under

1

Rule 55. The Court then directed the Plaintiff to respond as to why the Court should not vacate
its Order Granting Plaintiff’s Motion for Default Judgment (ECF No. 54), and the Plaintiff
diligently responded (ECF No. 56). The Court, however, holds that its default judgment should
indeed be vacated, leaving Defendant Christopher Montesi in default until determination of this
matter on the merits. Thus, the Court’s Order Granting Plaintiff’s Motion for Default Judgment
is VACATED, and the Defendants’ Motion for 54(b) Certification as to Default Judgment
Against Defendant Christopher Montesi is DENIED.
DISCUSSION
The Court directed the Plaintiff to show why the Court should not vacate its Default
Judgment against Montesi and leave Montesi in default until determination of the claims on the
merits. At the outset, “[w]hen it comes to multi-defendant cases, the ‘preferred practice’ in this
Circuit is ‘to withhold granting default judgment until the trial of the action on the merits.’” 1
Plaintiff responded that
because the claimed liability of the multiple defendants [in this
case] is joint and several, as opposed to joint, there is no legal or
practical reason for preventing Plaintiff from obtaining the
immediate benefit of a final and enforceable judgment against
Montesi, a defendant who has chosen not to oppose the relief
sought by Plaintiff against him. 2
The Plaintiff’s claims against all defendants are for (1) the outstanding balance owed under a
promissory note executed in connection with a commercial loan, and (2) for breach of separate
personal guaranties that each of the three individual defendants executed in connection with the
loan and note.
1

Alig-Mielcarek v. Jackson, No. 2:11-cv-00255, 2013 U.S. Dist. LEXIS 161319, at *3–4
(S.D. Ohio Nov. 12, 2013) (quoting Kimberly v. Coastline Coal Corp., No. 87-6199, 1988 U.S.
App. LEXIS 12265, at *5–6 (6th Cir. Sept. 9, 1988)).
2

Pl.’s Response 1, ECF No. 56.
2

The basis for the “preferred practice” of withholding granting a default judgment against
a single defendant in a multi-defendant case stems from an 1872 Supreme Court case, Frow v.
De La Vega. 3 Frow explained the danger in granting a default judgment against only one
defendant: “there might be one decree of the court sustaining the charge . . . committed by the
defendants, and another decree disaffirming the said charge, declaring it to be entirely unfounded
and dismissing the complainant’s bill.” 4 In other words, the danger is granting two inconsistent
judgments. As the Plaintiff notes, the Frow rule is “a narrow one,” applying when liability is
“joint.” 5 But many courts have determined that the Frow inquiry “turns not on labels such as
‘joint liability’ or ‘joint and several liability,’ but rather on the key question of whether under the
theory of the complaint, liability of all the defendants must be uniform.” 6
The Court must determine, then, whether different judgments against the defaulting
party—Montesi—and the defending parties—Highway Seventy, Glen Bascom, and Glen
Bascom II—would be logically inconsistent. Although this Court’s reasoning often will not
apply to other facts, the Court holds that the facts in this case give the Court good cause to
exercise its discretion in declining to enter default judgment against Montesi. First, the Court
notes that the first claim against all defendants is based upon the promissory note.

The

promissory note, a two-page document, is signed by Glen Bascom, Glen Bascom II, and

3

See Frow v. De La Vega, 82 U.S. (15 Wall.) 522 (1872).

4

Id. at 554.

5

See Kimberly, 1988 U.S. App. LEXIS 12265, at *7.

6

Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1008 (N.D. Cal.
2001); see Hitachi Med. Sys. Am. v. Horizon Med. Grp., No. 5:07CV020305, 2008 U.S. Dist.
LEXIS 107934, at *9 (N.D. Ohio Jan. 28, 2008).
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Montesi. 7 The second claim is based upon three individual guaranty agreements, each of which
is signed by a single party. 8 All three guaranty agreements contain the exact same language and
were signed on the same day in the presence of the same notary public.
Although at this point in the litigation the defenses of the defending parties to these
agreements are unclear, the Court is concerned that certain defenses—if raised by the defending
parties—could potentially negate the effect of such agreements. 9 In that case, if the Court had
already granted a default judgment against Montesi and certified it under Rule 54(b) as the
Plaintiff wishes, the Court could potentially be left with a final judgment declaring the
agreements or certain provisions enforceable and another final judgment declaring the
agreements or certain provisions unenforceable. 10 This is especially concerning when looking to
the promissory note, which is signed by all parties, and still troubling as to the guaranty
agreements, which all contain the exact same language. In defending the action, some defenses
may only apply to one specific party, while others may challenge the enforceability or
construction of the agreements. Certain situations involving joint and several liability do not

7

Note, Exhibit B to Pl.’s Compl., ECF No. 1-3.

8

Guaranty Agreements, Exhibit D to Pl.’s Compl., ECF No. 1-5.

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The Court is in no way considering the merits of the agreements or the Plaintiff’s
claims. Rather, it must discuss the action hypothetically in order to evaluate the potential for
inconsistent judgments.
10

Hitachi, 2008 U.S. Dist. LEXIS 107934, at *9 (“It would be absurd to hold Defendants
liable for claims based on amounts due under the acceleration clause in certain contracts, where
the Court held in the same case that the answering defendants were not liable on the same claims
because the same acceleration clause in identical contracts was unenforceable as a matter of
law.”).
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implicate Frow’s principle, but here, potentially holding some but not all defendants liable “is
precisely the type of absurdity cautioned against by the Supreme Court in Frow.” 11
The Plaintiff is correct when it asserts that a hypothetical plaintiff “could elect to sue two
joint and several defendants in separate actions in separate courts if it so chose, and there would
be a great possibility, clearly allowable under the law, of inconsistent judgments.” But in this
case, the Plaintiff has not elected to sue in separate courts. Instead, it has elected to sue all four
defendants in the same action, and it now asks the Court to grant a default judgment against one
of those defendants. “A motion for default judgment is addressed to the court’s discretion, and,
the movant is not entitled to a default judgment as of right, even ‘when the defendant is
technically in default.’” 12 Exercising such discretion, the Court VACATES its Order Granting
Default Judgment as to Defendant Montesi and DENIES Plaintiff’s Motion for Rule 54(b)
Certification as to Default Judgment Against Defendant Montesi. Defendant Montesi shall
remain in default in accordance with the Clerk’s previous entry of default. Remaining in default,
Montesi is deemed to have admitted all factual allegations in the Plaintiff’s Complaint. 13
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: December 18, 2014.

11

Id. at *10–11.

12

Pryor v. Hurley, No. 2:05-cv-936, 2006 U.S. Dist. LEXIS 46350, at *12 (S.D. Ohio
July 7, 2006) (quoting 10 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal
Practice and Procedure §§ 2681, 2685).
13

See United States v. Kuglin, No. 11-2741, 2013 U.S. Dist. LEXIS 31471, at *7–8
(W.D. Tenn. Mar. 7, 2013).
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