United States District Court, N.D. Mississippi, Oxford Division
M. BROWN, UNITED STATES DISTRICT JUDGE.
the Court is Travelers Casualty and Surety Company of
America's “Renewed Motion for Default Judgment on
Damages Against Jimmy Dallan Nelms (Only).” Doc. #36.
Factual and Procedural
December 8, 2011, Travelers Casualty and Surety Company of
America issued to Alcorn County, Mississippi, a $100, 000
public official bond on behalf of newly elected supervisor
Jimmy Dallan Nelms. Doc. #1 at ¶ 10; Doc. #1-1. To
obtain the bond from Travelers, Nelms executed a Public
Official Application and Indemnity Agreement
(“Indemnity Agreement”). Doc. #1 at ¶ 15;
or about December 2, 2014, the State of Mississippi, through
the Office of the State Auditor, made demand on Nelms and
Travelers for the sum of $308, 244.71, relating to claims
[of] embezzlement or misappropriation by Nelms from Alcorn
County.” Doc. #1 at ¶ 11. According to Travelers,
Nelms entered joint and/or separate conspiracies with Jimmy
Mitchell, Joseph McNair, and Danny Peters “to embezzle,
misappropriate, convert and defraud money from Alcorn
County.” Id. at ¶ 12. After Travelers
investigated the Alcorn County claim, “Alcorn County
executed a Release and Assignment transferring, assigning and
setting over to Travelers all the rights, demands and causes
of action it may have against … the Defendants, in
consideration for the payment by Travelers of $100, 000.00,
in full settlement of Travelers' liability under the Bond
as a result of the acts of the Defendants.”
Id. at ¶ 13; Doc. #1-2.
February 19, 2016, Travelers filed in the United States
District Court for the Southern District of Mississippi a
multi-count complaint against Nelms, Mitchell, McNair,
Peters, and John Does 1-10. Doc. #1. On March 24, 2016,
Travelers filed an application with the Clerk of the Court
for the entry of a default, along with a supporting affidavit
averring that Nelms and Peters have “fail[ed] to answer
or otherwise defend Travelers' Complaint.” Doc. #9;
Doc. #9-1. That same day, the Clerk of the Court entered
default against Nelms and Peters. Doc. #10.
April 26, 2016, the case was transferred to the Northern
District of Mississippi. Doc. #13; Doc. #17; Doc. #18.
Following transfer, on May 4, 2016, Travelers filed a motion
for default judgment against Nelms and Peters. Doc. #20. Because
McNair, who had not defaulted, remained a defendant in this
case and faced joint and several liability with the
defaulting defendants, the Court denied Travelers' motion
for default judgment without prejudice. Doc. #30.
1, 2016, Travelers filed a second motion for default judgment
against Nelms and Peters seeking a judgment in the amount of
$100, 000. Doc. #31. On February 2, 2017, Travelers
moved for a hearing. Doc. #34. On March 22, 2017, the Court
entered an order which, among other things, granted default
judgment on some claims against Nelms but denied without
prejudice a judgment on damages for such
claims. Doc. #35 at 15-16. The order also denied
as moot Travelers' request for a hearing. Id. On
March 28, 2017, Travelers filed the instant motion for
default judgment on damages against Nelms. Doc. #36.
a default judgment, “[a] plaintiff bears the burden of
proving his damages.” Niemi v.
Lasshofer, 770 F.3d 1331, 1355 (10th Cir. 2014); see
Flynn v. People's Choice Home Loans, Inc., 440 F.
App'x 452, 457 (6th Cir. 2011) (following default
judgment, “the burden of establishing damages rest[s]
squarely and solely” on the plaintiff). Generally, a
district court may only award damages without an evidentiary
hearing if “the amount claimed is a liquidated sum or
one capable of mathematical calculation.” James v.
Frame, 6 F.3d 307, 310 (5th Cir. 1993).
asserts that under the Indemnity Agreement, it is entitled to
recover from Nelms the $100, 000 penal sum of the bond it
paid to Alcorn County. Doc. #37 at 4. In support, Travelers
submits two affidavits from Barbara Check, a claim executive
for Travelers; the Indemnity Agreement; the Public Official
Bond; the Release and Assignment between Travelers and Alcorn
County; and a copy of a check from Travelers to “Alcorn
County, State of MS” in the amount of $100, 000. Doc.
#37-1-Doc. #37-5. In the first Check affidavit, Check repeats
and attests to some of the allegations in the complaint. Doc.
#37-4. In the second affidavit, Check avers that Travelers
paid the $100, 000 penal sum of the public official bond
“based on the facts learned during Travelers'
investigation and as set forth in the Complaint
….” Doc. #37-5 at ¶ 3.
such evidence, the Court concludes that an evidentiary
hearing is unnecessary, and that Travelers is entitled to the
$100, 000 it paid Alcorn County. See Arch Ins. Co. v.
WM Masters & Assocs., Inc., No.
3:12-cv-2092, 2013 WL 145502, at *4-5 (N.D. Tex. Jan. 14,
for breach of indemnity agreement related to bond
ascertainable without hearing).