United States District Court, N.D. Alabama, Northeastern Division
AMERICAN SOUTHERN INSURANCE COMPANY, a Kansas Corporation, Plaintiff,
v.
CREATIVE SCAPES, LLC, an Alabama Limited Liability Company, and RICHARD MARANVILLE, an individual, Defendants.
MEMORANDUM OPINION
LILES
C. BURKE UNITED STATES DISTRICT JUDGE.
This
case arises out of an alleged breach of contract by the
Defendants, Creative Scapes, LLC, and its sole member and
manager, Richard Maranville. This Court has diversity
jurisdiction over the matter pursuant to 28 U.S.C. 1332,
because, according to the complaint, the amount in
controversy exceeds $75, 000, and the parties are of diverse
citizenship.[1] Venue is proper in the Northeastern
Division of the Northern District of Alabama because the
Defendants maintain their principal place of business and
residence in Madison County, Alabama, and the facts
underlying the claims asserted in the complaint occurred in
this judicial district. See 28 U.S.C. §
1391(b).
Background
This
Court has reviewed the complaint and finds that it adequately
states viable causes of action under Alabama law. According
to the complaint, the Defendants entered into a subcontract
with Denark[2] Construction in which the Defendants were
to perform “rough carpentry and general trades work on
a project known as the Grissom High School Project in Madison
County, Alabama.” (Doc. 1, p. 2). The subcontract sum
was $372, 600.00. The Plaintiff, American Southern Insurance
Company (“American Southern”), issued a
subcontract performance bond in the amount of $372, 600.00
naming Creative Scapes as the principal, American Southern as
surety, and Denark as obligee.
According
to the complaint, the Defendants failed to timely perform
their obligations under the contract. Therefore, Denark
called upon American Southern to fulfill Creative
Scapes's contractual obligations. In its motion for
default judgment, American Southern alleges that it paid
Denark a total of $300, 000 to fully satisfy its obligations
under the performance bond. American Southern also alleges
that it has paid attorney's fees including costs and
expenses as well as construction- consulting fees in
connection with the bond claim. These are the amounts that
American Southern seeks to recover in this action.
The
Plaintiff filed its complaint on January 28, 2019, and the
record indicates that each Defendant was served on April 22,
2019.[3] (Docs. 7 and 8). Accordingly, the
Defendants were required to file an answer or other
responsive pleading by May 13, 2019. See Rule
12(a)(1)(A)(i), Fed.R.Civ.P. However, neither Defendant did
so. Consequently, on motion of the Plaintiff, the Clerk
entered default as to both Defendants on June 17, 2019,
pursuant to Rule 55(a), Fed.R.Civ.P. (Docs. 11 and 12). The
Plaintiff attached to its motion an affidavit stating that
the Defendants were personally served with copies of the
complaint; that the Defendants were not minors, incompetents,
and/or active military; and that the Defendants had failed to
plead or otherwise respond to the complaint. Therefore, the
Clerk's entry of default was proper.
On July
9, 2019, the Plaintiff filed a motion for default judgment as
to both Defendants. (Doc. 13). On November 5, 2019, this
Court issued show-cause orders to both Defendants giving them
until November 22, 2019, to show cause as to why the
Plaintiff's motion for default judgment should not be
granted. See (Docs. 19 and 20). The orders were sent
by certified mail to the same address at which both
Defendants were personally served with copies of the
complaint. However, the orders were returned to the Clerk as
“Unclaimed” and “Unable to Forward.”
(Doc. 21). The Court has received no further response from
either Defendant.
Discussion
Rule
55(b), Fed. R. Civ. P., provides:
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum
certain or a sum that 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 nor an 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 make
referrals--preserving any federal statutory right to a jury
trial--when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of ...