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Louis v. A2Z Powersports, Inc.

United States District Court, N.D. Alabama, Southern Division

July 19, 2019

A2Z POWERSPORTS, INC., et al., Defendant.



         This matter is before the Court on the Motion for Default Judgment As To Defendant Victory Police Motorcycles, LLC (“VPM”) filed by the Plaintiff, Officer Laquinte Louis (the “Plaintiff” or “Officer Louis”). (Doc. 87). Having considered the record in this matter and the testimony and exhibits presented by the plaintiff, the Court enters judgment in favor of the plaintiff and against the defendant for compensatory and punitive damages as outlined herein below.


         This matter was initially removed from the Circuit Court of Jefferson County on June 23, 2016. (Doc. 1).[1] On October 10, 2016, Defendant VPM appeared through counsel and answered the initial complaint. (Doc. 22). On January 16, 2017, the Plaintiff filed his First Amended Complaint. (Doc. 27). On August 21, 2017, before VPM had filed any answer to the First Amended Complaint, counsel for VPM moved to withdraw. (Doc. 45). While that motion to withdraw was pending, the Plaintiff filed his Second Amended Complaint. (Doc. 49). The Second Amended Complaint is the operative complaint in this matter.[2]

         The Court ordered counsel for VPM to certify that VPM had been made aware that a limited liability company cannot proceed pro se in federal court. (Doc. 52). VPM's counsel certified that VPM was informed of this fact, in addition to his earlier statement to the Court that VPM had been served with notice of counsel's intent to withdraw from representation. (Id.); see also (Doc. 45). VPM has never answered the First Amended Complaint or the Second Amended Complaint. Other than the actions taken by its counsel to withdraw, VPM has not taken any action at all to respond or otherwise defend this matter since it answered the initial complaint on October 10, 2016.

         On December 21, 2018 the Court directed the Clerk of Court to make an entry of default as to VPM. (Doc. 83). The Clerk made an Entry of Default as to VPM on December 26, 2018. (Doc. 84). On February 22, 2019, the Plaintiff filed a Motion For Default Judgment as to VPM pursuant to Rule 55(b) of the Federal Rules of Civil Procedure. (Doc. 87).[3] On March 12, 2019, the Court reiterated its finding that VPM had failed to respond or otherwise defend itself in this matter and entered a judgment by default against it. (Doc. 88). The Court further ordered that the Plaintiff appear and present evidence to assist the Court in determining the appropriate amount of damages. (Id.).

         Plaintiff in its Second Amended Compliant demanded a trial by struck jury. (Doc. 49). Subsequently, plaintiff filed a motion to withdraw this demand pursuant to Rule 38(d), Federal Rules of Civil Procedure and moved for the Court to strike the demand against Victory Police Motorcycles, LLC. (Doc. 94). The Court granted this motion on May 30, 2019 and ordered the jury demand stricken from the Second Amended Complaint. (Doc. 95). Although, Rule 38(d) provides both parties must consent to a withdraw of jury demand, the Court finds that the Defendant by failing to defend and appear in this matter has effectively waived its right to object to plaintiff's withdraw of his jury demand.

         On April 1, 2019, Plaintiff's counsel took testimony from the Plaintiff, introduced exhibits and argument and requested that the Court determine and award compensatory and punitive damages in this matter. Based upon the evidence presented, the Court makes the following findings of fact and law.


         While courts generally require some notice to be given to defendants between the time of service of process and entry of a default judgment, see, e.g., Capitol Records v. Carmichael, 508 F.Supp.2d 1079, 1083, n.1 (S.D. Ala. 2007), Rule 55 explicitly provides for entry of default and default judgment where a defendant “has failed to plead or otherwise defend.” Fed.R.Civ.P. 55(a).[4]Furthermore, “[w]hile modern courts do not favor default judgments, they are certainly appropriate when the adversary process has been halted because of an essentially unresponsive party.” Flynn v. Angelucci Bros. & Sons, Inc., 448 F.Supp.2d 193, 195 (D.D.C. 2006) (citation omitted). The Court is satisfied that Defendant VPM is on notice of the default proceedings against it. Before it stopped responding or participating in this matter, VPM had appeared and took the step of answering the initial complaint. However, VPM has failed to pled or defend the claims asserted against it in this lawsuit in any way since August 10, 2016. Finally, there is evidence in the record demonstrating that VPM is on notice of the continuing nature of this lawsuit following the withdrawal of VPM's counsel and subsequent failure to participate in these proceedings.[5] Accordingly, the Clerk of Court has made entry of default as to VPM and the Court has entered a judgment by default against that party as well.

         A. Factual Allegations In Plaintiff's Complaint Are Admitted By Default

         The Court notes that VPM's default in this matter is “an admission of the facts cited in the Complaint.” Capitol Records, 508 F.Supp.2d at 1082-83. Upon the entry of a default judgment, the complaint's well pleaded allegations, but not those pertaining to the amount of damages, are taken as true the same as if they had been proven by evidence. See, e.g., Boswell v. GumBayTay, No. 2:07-CV-135-WKW, 2009 U.S. Dist. LEXIS 45954, *5 (M.D. Ala. Jun. 1, 2009) (citing Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990)). Once in default, a defendant cannot later seek to contradict those allegations. See Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).[6]Accordingly, the Court will take a moment to address the allegations in the Second Amended Complaint before addressing the evidence as to damages.

         In his Second Amended Complaint, the Plaintiff alleges that “Defendant Victory was and is engaged in the business of manufacturing, fabricating, designing, assembling, distributing, selling, inspecting, servicing, repairing, marketing, warranting, retailing, wholesaling and advertising police motorcycles and, more specifically, a certain subject 2014 Victory Police Motorcycle, VIN 5VPDW30N9E3032008.” (Doc. 49). The Plaintiff alleges the subject motorcycle's design defects included an unsafe rear suspension system which failed at high speeds, and a defective and unsafe design that required consumers to determine appropriate settings for the rear suspension system. (Id.). He further alleges the Defendants, including VPM, “knew or, in the exercise of reasonable care, should have known that said motorcycle and all of its component parts would be used without inspection for defects in its parts, mechanisms or design, for use in the State of Alabama and elsewhere by consumers.” (Id.). VPM did this without issuing any warnings to the Plaintiff or the City of Birmingham about the motorcycle. (Id.).

         The Plaintiff and his employer, the City of Birmingham, relied on VPM's representations that the subject motorcycle was safe when the City of Birmingham decided to purchase it and others like it. (Id.). The subject motorcycle was not safe, however -- a fact which VPM knew and concealed from the Plaintiff and the City of Birmingham. (Id.). The Plaintiff was riding the subject motorcycle when it wrecked due to the defective design, and the Plaintiff was ejected from the motorcycle. (Id.). He was taken to the hospital and treated for his injuries. (Id.). The Plaintiff states the following claims for relief against VPM: (1) negligence and wantonness; (2) violation of the Alabama Extended Manufacturers' Liability Doctrine (“AEMLD”); (3) breach of implied warranty; (4) fraudulent concealment and suppression; and (5) negligent misrepresentation. (Doc. 49).

         Based upon the complaint and admitted factual allegations coupled with the testimony and evidence presented at the hearing on damages, the Court hereby finds that the Defendant's negligent and wanton design and manufacture of the motorcycle in question along with the failure to warn proximately caused the plaintiff's injuries.

         B. ...

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