Opinion
Civil Action No. SA-05-CA-0673-XR.
December 7, 2005
ORDER
On this date, the Court considered Plaintiff's Motion for Default Judgment against Defendants Basswood Group, L.P. and Rose-Flores, Inc. (docket no. 7). After careful consideration, the Court will GRANT the motion.
I. Procedural Background
Plaintiff filed its Complaint in the above numbered and styled cause on July 20, 2005. Personal service was executed on Basswood Group, L.P. ("Basswood") and Rose-Flores, Inc. ("Rose-Flores") by service on their registered agent Philip R. Rosenfeld on August 9, 2005. See docket nos. 2 3. Defendants did not timely answer or otherwise respond, and have not answered, responded, or otherwise appeared as of this date. Plaintiff moved for entry of default on September 30, 2005, and the Clerk entered default against both Basswood and Rose-Flores on October 3, 2005. See docket nos. 4, 5, 6. Pursuant to Federal Rule of Civil Procedure 55, Plaintiff now moves for default judgment.
II. Analysis
Plaintiff brought this case alleging breach of contract based on Defendants' failure to indemnify and reimburse Plaintiff for bond claim payments and related costs and expenses. Plaintiff allegedly made payments on performance and payment bond claims arising out of Defendant Basswood's failure to perform obligations with regard to certain construction projects. As a condition of procuring the bonds for Basswood, Plaintiff required Basswood, Rose-Flores, Philip R. Rosenfeld, Lisa P. Rosenfeld, Roger J. Flores, and Celia Flores to execute a General Indemnity Agreement (the "Agreement"). The Agreement required each signatory to indemnify and hold Plaintiff harmless for any losses, costs, and expenses incurred as a result of issuing the construction bonds. Defendants' default concedes the truth of the allegations of the Complaint as to Defendants' liability, but not damages. Jackson v. FIE Corp., 302 F.3d 515, 521, 524-25 (5th Cir. 2002). Plaintiff seeks contractual damages, attorney's fees, and costs.Federal Rule of Civil Procedure 54(c) states that "a judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings." FED. R. CIV. P. 54(c). As a general rule, damages will not be awarded without a hearing or a demonstration by detailed affidavits establishing the necessary facts. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979). When the amount of damages and/or costs can be determined with certainty by reference to the pleadings and supporting documents and when a hearing would not be beneficial, a hearing is unnecessary. James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993). Plaintiff alleges that the amount of damages is liquidated and is a sum certain and thus no hearing is required.
Plaintiff requests the entry of default judgment against Defendants, jointly and severally, in the amount of $966,848.87 for contractual damages, plus attorney's fees, costs, expenses, and post-judgment interest. The Court finds that Defendants have admitted liability as alleged in the Complaint, default judgment is proper, and sufficient evidence has been produced to support Plaintiff's liquidated damages. The Court further finds Defendants are joint and severally liable to Plaintiff for $966,848.87 in contractual damages, $4,735.00 in attorney's fees, costs of court, and post-judgment interest. With regard to Plaintiff's request for contingent attorney's fees, the Court finds an award is not warranted.
III. Conclusion
For the reasons herein, Plaintiff's Motion for Default Judgment is GRANTED (docket no. 7). The Court awards Plaintiff Lumbermens Mutual Casualty Company a default judgment for damages against Defendants Basswood Group, L.P. and Rose-Flores, Inc. Pursuant to Federal Rule of Civil Procedure 58, the Court will enter judgment on a separate document.