United States District Court, N.D. Alabama, Southern Division
AVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Plaintiff's Motion for
Summary Judgment. (Doc. # 14). The court advised Defendant,
who is appearing pro se, of the summary judgment
rules and procedures of this court. (Doc. # 17). Defendant
requested additional time to retain counsel and respond to
the motion. (Doc. # 20). The court granted Defendant's
request and stayed the case for 30 days so that Defendant
could hire an attorney. (Doc. # 19). Defendant has not
notified the court whether he retained counsel, nor has
Defendant substantively responded to Plaintiff's summary
judgment motion. On April 5, 2017, the court lifted the stay
in this action and directed Defendant to respond to the
summary judgment motion by April 25, 2017. (Doc. # 22).
Because Defendant has not filed a response to the summary
judgment motion, the motion is now under submission. For the
reasons outlined below, Plaintiff's motion (Doc. # 14) is
due to be granted.
Statement of Facts
a bank, issued a business loan with a principal of $228,
622.74 to Defendant, a medical doctor, on April 28, 2015.
(Doc. # 16 at 5). Defendant signed a Promissory Note to
Plaintiff on that date. (Id. at 8-12). Plaintiff and
Defendant also entered into a “Business Loan
Agreement” on that date. (Id. at 5, 14-19).
Defendant agreed to pay the principal and interest on the
loan. (Id. at 5). Also, Defendant consented to pay
Plaintiff costs and expenses incurred in collecting any
amount he owed to Plaintiff pursuant to the loan agreement,
“including reasonable attorneys' fees.”
(Id. at 5, 10, 18). The Business Loan Agreement
provided that Defendant would enter default if he failed to
make any payment at the time it was due. (Id. at
16). Once Defendant entered into default for a failure to
pay, Plaintiff had the option to demand immediate payment of
all indebtedness. (Id.). As part of the Promissory
Note, Defendant submitted to the jurisdiction of any state or
federal court in Jefferson County, Alabama (i.e.,
this court) for any dispute arising out of or relating to the
Promissory Note. (Id. at 11).
defaulted on the business loan by failing to make payments
when they were due. (Id. at 21). In October 2015 and
November 2015, Defendant discussed alternative payment
schedules with an assistant vice president for Plaintiff.
(See Doc. # 20 at 1-5). Plaintiff's counsel sent
Defendant a letter on January 27, 2016 and demanded full
payment on or before February 8, 2016. (Doc. # 16 at 21). At
that time, Defendant owed $228, 622.34 in principal, $6,
048.97 in interest, $62.50 in late fees, and $750.00 in
attorneys' fees and costs. (Id.). Defendant has
not paid the amount he owes to Plaintiff under the Promissory
Note. (Id. at 6).
has averred that $19, 961.59 of interest accrued on the loan
as of January 4, 2017 and that interest has accrued at a rate
of $40.32 per day thereafter. (Id.). Plaintiff filed
suit in this court in March 2016. (Doc. # 1). Plaintiff
alleged that this court possesses diversity jurisdiction over
this suit because (a) Plaintiff and Defendant were citizens
of different states and (b) the amount Defendant owed on the
loan exceeded $75, 000.00. (Id. at ¶¶
1-3). Defendant answered the complaint and did not contest
the court's personal jurisdiction or subject matter
jurisdiction over the suit. (Doc. # 6). Defendant admitted
that he was a citizen of Florida. (Id. at 1)
(admitting the allegations in Paragraph 2 of the Complaint).
The court is satisfied that Plaintiff has properly invoked
the court's diversity jurisdiction.
Standard of Review
Federal Rule of Civil Procedure 56(c), summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56(c) requires the non-moving party to
go beyond the pleadings and -- by pointing to affidavits,
depositions, answers to interrogatories, and/or admissions on
file -- designate specific facts showing that there is a
genuine issue for trial. Id. at 324.
faced with a “properly supported motion for summary
judgment, [the non-moving party] must come forward with
specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc.,
131 F.3d 995, 999 (11th Cir. 1997). Here, Defendant has not
responded to the substance of Plaintiff's summary
judgment motion and has only contested one non-dispositive
fact presented by Plaintiff. (See Doc. # 20). In
such a circumstance, the court must review the materials
submitted in support of the motion for summary judgment to
determine whether summary judgment is warranted. United
States v. One Piece of Real Property Located at 5800 Sw. 74th
Ave., Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir.
2004). The court cannot grant a party summary judgment as a
matter of default based solely on a non-movant's failure
to oppose the motion for summary judgment. Id. at
1101 (“[S]ummary judgment, even when unopposed, can
only be entered when appropriate.” (internal quotation
substantive law will identify which facts are material and
which are irrelevant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). All reasonable doubts
about the facts and all justifiable inferences are resolved
in favor of the non-movant. See Allen v. Bd. of Pub.
Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir.
2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson,
477 U.S. at 248. If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.
See Id. at 249.
seeks summary judgment on a breach of contract claim and an
unjust enrichment claim. (See Doc. # 15 at 4-7).
Plaintiff also requests an award of reasonable attorneys'
fees and costs, pursuant to the Promissory Note and the
Business Loan Agreement. (Id. at 7-8). After careful
review, and for the reasons explained below, the court
concludes that Plaintiff is entitled to summary judgment on
its breach of contract claim. However, Plaintiff's unjust
enrichment claim is foreclosed by its meritorious breach of
contract claim because both claims are based on the same
underlying facts and the same loan agreement. Finally, while
Plaintiff is entitled to reasonable attorneys' fees and
other costs of collection as damages in this suit, Plaintiff
has not provided sufficient evidence for the court to
determine whether the requested amount of attorneys' fees
and expenses is reasonable.
Plaintiff is Due to be Granted Summary Judgment for Breach of
a breach of contract under Alabama law, a plaintiff must show
that (1) a valid contract bound the parties, (2) the
plaintiff performed under the contract, (3) the defendant
failed to perform under the contract, and (4) the plaintiff
suffered damages as a result of the non-performance.
Reynolds Metals Co. v. Hill, 825 So.2d 100, 105
(Ala. 2002). “A promissory note is a form of contract;
therefore, it must be construed under general contract