United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
matter is before the court on B.L. Harbert International,
L.L.C.'s (“BLHI”) Motion for Default Judgment
against AIM Fabricators, LLC (“AIM Fabricators”).
(Doc. # 129). On November 16, 2017, the court reminded the
parties to brief BLHI's Motion under Exhibit B to the
court's Initial Order (Doc. # 58), which required any
response to the Motion to be filed within ten (10) days.
(Doc. # 130). Thus, any response to BLHI's Motion was due
on or before November 27, 2017. No response to the Motion has
was the prime contractor on an overseas construction project
referred to as Project 832. (Doc. # 45 ¶¶ 5, 17).
Harbert issued a purchase order to AIM Steel International,
Inc. (“AIM Steel”) for a supply of structural
steel for the project. (Doc. # 45 ¶ 6; Doc. # 129-1
¶ 4)]. AIM Steel entered into a Master Services
Agreement with AIM Fabricators. Under that agreement AIM
Steel issued purchase orders for steel fabrication to Palmer
Steel Supplies, Inc. (“Palmer”). (Doc. # 45
¶ 11; Doc. # 129-1 ¶ 5).
paid AIM Steel for the supplies BLHI received, but Palmer
allegedly never received payment for the steel it supplied.
(Doc. # 45; Doc. # 129-1 ¶¶ 5-6). Palmer filed this
lawsuit against BLHI and AIM Steel. (Doc. # 45 ¶ 16;
Doc. # 129-1 ¶ 7). BLHI filed cross-claims against both
AIM Steel and AIM Fabricators (Doc. # 24; Doc. # 129-1 ¶
8), which were subsequently amended (Doc. # 45). Service of
BLHI's cross-claim against AIM Fabricators was
acknowledged by AIM Fabricator's counsel. (Doc. # 34).
AIM Steel, and AIM Fabricators entered into a
“Mediation and Interim Settlement Agreement”
under which AIM Steel and AIM Fabricators agreed to pay
lower-tier suppliers, and obtain releases of BLHI and its
sureties from payment claims by lower-tier suppliers or
defend and indemnify BLHI from such claims. (Doc. # 45 ¶
28; Doc. # 129-1 ¶ 9]. Based on this agreement, AIM
Fabricators was obligated to defend and indemnify BLHI and to
hold BLHI harmless for payment claims brought by lower-tier
suppliers, like Palmer. (Doc. # 45 ¶¶ 43-46; Doc. #
129-1 ¶ 11). Thus, if Palmer was entitled to payment,
AIM Fabricators would be liable for amount of Palmer's
judgment plus all attorneys' fees, costs, and expenses of
litigation incurred by BLHI for defending against
Palmer's claims. (Doc. # 45 ¶¶ 43-46; Doc. #
129-1 ¶¶ 11-12).
resolve Palmer's claims against it, BLHI paid Palmer
$400, 000 for the steel Palmer provided to AIM Steel for the
Project, but for which AIM Steel refused to pay Palmer. (Doc.
# 129-1 ¶ 10). BLHI also incurred attorneys' fees,
costs and expenses in the amount of $141, 130.11 in defending
against Palmer's claims. (Doc. # 129-1 ¶ 12). Under
the Mediation and Interim Settlement Agreement, AIM
Fabricators is obligated to indemnify BLHI for the $400, 000
payment, and for BLHI's costs and expenses in defending
against Palmer's claims. (Doc. 45 ¶¶ 28, 43-46;
Doc. # 129-1 at 9-11).
now seeks a Rule 55(b) default judgment against AIM
Fabricators in the amount of the $400, 000 it paid to Palmer
in settlement of Palmer's claims against it, together
with its fees, costs, and expenses incurred in defending
against those claims. (Doc. # 45, ¶¶ 43-46; Doc. #
129 at 5). For the reasons outlined below, BLHI's Motion
(Doc. # 129) is due to be granted.
Standard of Review
55(b) states in relevant part:
(b) Entering a Default Judgment.
(1) By the Clerk. If the
plaintiff's claim is for a sum certain or for a sum which
can be made certain by computation, the clerk--on the
plaintiff's request, with an affidavit showing the amount
due--must enter judgment for that amount and costs against a
defendant who has been defaulted for not appearing and who is
neither a minor or incompetent person.
(2) By the Court. In all other
cases, the party must apply to the court for a default
judgment. A default judgment may be entered against a minor
or incompetent person only if represented by a general
guardian, conservator, or other like fiduciary who has
appeared. If the party against whom a default judgment is
sought has appeared personally or by a representative, that
party or its representative must be served with written
notice of the application at least 7 days before the hearing.
The court may conduct hearings or ...