Opinion
Civil Action No. 17-1647
01-14-2019
DEVELOPERS SURETY AND INDEMNITY COMPANY, Plaintiff, v. PARKWOOD POINTE ASSOCIATES, LLC, BLACKWOOD POINTE ASSOCIATES, LLC, and DAVID G. CHERUP, Defendants.
Judge David Stewart Cercone
Re: ECF No. 16 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Developers Surety and Indemnity Company ("Plaintiff") brought this case against Defendants Parkwood Pointe Associates, LLC, Blackwood Pointe Associates, LLC and David G. Cherup (collectively, "Defendants") for indemnification, reimbursement and exoneration recoverable under pursuant to the parties' General Indemnity Agreement (the "GIA") in connection with a bond issued by Plaintiff in its capacity as a surety. Presently before the Court is a Motion for Default Judgment, filed by Plaintiff on November 9, 2018, seeking entry of default against Defendants and judgment in the amount of $121,164.05 plus attorneys' fees and costs of not less than $8,505.00. ECF No. 16. The Clerk of Court entered the requested default on November 9, 2018, based on Defendants' failure to plead or otherwise defend this action. ECF No. 17. For the reasons set forth herein, it is respectfully recommended that judgment be entered in favor of Plaintiff and against Defendants in the amount of $125,784.05.
II. REPORT
Following the filing of the instant Motion for Default Judgment, this Court entered an order directing Plaintiff to support the Motion for Default Judgment with an appropriate accounting of all claimed amounts through copies of invoices, canceled checks or billing records. ECF No. 18. On November 20, 2018, Plaintiff filed an Affidavit for Entry of Default, purporting to support its claimed amount of $129,669.05, for losses, damages, attorneys' fees and expenses recoverable pursuant to the GIA. ECF No. 19.
At this juncture, the Court must determine the propriety of the claimed amount pursuant to the terms of the GIA. Section 2.4 of the GIA provides:
In any claim or suit hereunder, an itemized statement of claims or losses paid or liabilities incurred and expenses paid or incurred, declared under penalty of perjury to be true and correct by an officer of the Surety, or the vouchers or other evidence of disbursements by the Surety, shall be prima facie evidence of the fact and extent of liability hereunder of Principal and Indemnitor.ECF No. 19 ¶ 18 (citing ECF No. 19-1 at 2).
In the Affidavit, Plaintiff claims that it has attached documents establishing that it has incurred losses, damages, attorney's fees and expenses comprised of: (1) $121,164.05, constituting payment on the $100,000.00 bond plus $21,163.05 in "Loss Adjustment Expenses" through November 15, 2017, ECF No. 19 ¶ 20; and (2) $8,505.00 in Loss Adjustment Expenses incurred since November 15, 2017, id. ¶ 23. Plaintiff thus declares a total claimed amount of $129,669.05. Id. ¶ 27.
In support of the first amount, i.e., $121,164.05, Plaintiff attaches a document it represents as its "Statement of Losses arising out of Bonds issued to [Defendants]." Id. ¶ 14; ECF No. 19-3 at 1. The document lists Plaintiff's $100,000.00 payment on the bond as well as expenses totaling $21,164.05. ECF No. 19-3. The nature of the expenses is not identified; however, for each expense, there is an identified payee and a check number. Id. Therefore, the Court will accept the itemized statement in support of the first amount, i.e., $121,164.05.
In support of the second amount, i.e., $8,505.00, Plaintiff attaches invoices from a law firm for professional services. However, a review of the expenses incurred after November 15, 2017, which is the relevant time frame identified by Plaintiff, reveals fees of only $4,620.00 ($140.00 from the invoice at ECF No. 19-3 at 2-4; $2,257.50 from the invoice at ECF No. 19-3 at 5-6; and $2,222.50 from the invoice at ECF No. 19-3 at 7-8). Thus, the Court can only award $4,620.00 of the second claimed amount because it is the amount supported by the provided itemized statement.
For the foregoing reasons, it is respectfully recommended that Judgment be entered in favor of Plaintiff and against Defendants in the amount of $125,784.05.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted,
/s/_________
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Dated: January 14, 2019 cc: The Honorable David Stewart Cercone
United States District Judge
All counsel of record via CM/ECF