United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING WITHOUT PREJUDICE IN PART PLAINTIFF GRAND BISCAYNE
670, LLC'S MOTION  FOR DEFAULT JUDGMENT
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Plaintiff Grand Biscayne 670, LLC's Motion
 for Default Judgment against Defendant 14510 Lemoyne
Boulevard, LLC. Plaintiff requests compensatory and punitive
damages as well as attorneys' fees on its claims for
breach of contract, tortious breach of contract, and
due consideration of Plaintiff's Motion , the record,
and relevant legal authority, the Court is of the opinion
that the Motion  should be granted in part and denied
without prejudice in part. Plaintiff Grand Biscayne 670 LLC
is entitled to a default judgment against Defendant 14510
Lemoyne Boulevard, LLC, in the amount of $76, 500.00,
representing compensatory and punitive damages. Although
Plaintiff has not provided credible evidence to support its
request for attorneys' fees, the Court will allow
Plaintiff thirty (30) days from the date of
entry of this Order to submit such evidence for the
Court's consideration. If Plaintiff elects not to submit
any further evidence by this deadline, the Court will enter a
Default Judgment for the amount of compensatory and punitive
Grand Biscayne 670, LLC (“Plaintiff” or
“Grand Biscayne”), filed suit in this Court
against Defendant 14510 Lemoyne Boulevard, LLC
(“Defendant” or “Lemoyne”), on
November 8, 2018, advancing claims for breach of contract,
tortious breach of contract, and conversion. Compl. . The
Complaint alleges that Plaintiff's assignor had
previously entered into a Contract with Lemoyne for the
purchase of real property in which the parties agreed that
Lemoyne would pay the title insurance premiums associated
with the purchase. Id. at 2; Ex. “A”
[1-1]. The Contract was later assigned to Grand Biscayne,
which now asserts that Lemoyne failed to pay these premiums
in the amount of $51, 500.00 when they were mistakenly
charged to Plaintiff at the closing of the purchase on
February 15, 2018. Id. at 3; Ex. “C”
[1-3] at 1. Plaintiff made demand upon Lemoyne to reimburse
it the $51, 500.00 premium, but Lemoyne failed to pay or
respond to Plaintiff's demands. Id. at 3; Ex.
“C” [1-3] at 1.
was served with process but has never made an appearance in
the case, nor has Lemoyne ever made any attempt to respond to
the lawsuit. Executed Summons . Accordingly, Plaintiff
filed a Motion  for Entry of Default. The Clerk of Court
entered an Entry of Default  on December 7, 2018, and
Grand Biscayne subsequently moved for a default judgment.
Mot.  for Default J.
seeks an award of $51, 500.00 in compensatory damages, $25,
000.00 in punitive damages, and $17, 166.00 in attorneys'
fees. Id. 7-8.
Default judgment under Federal Rule of Civil Procedure
Rule of Civil Procedure 55 provides that, after the clerk has
entered a default against a defendant for failure to plead or
otherwise respond to a complaint, a plaintiff may apply for a
default judgment. N.Y. Life Ins. Co. v. Brown, 84
F.3d 137, 141 (5th Cir. 1996). A party is not entitled to a
default judgment as a matter of right, even where the
defendant is technically in default. Ganther v.
Ingle, 75 F.3d 207, 212 (5th Cir. 1996). “There
must be a sufficient basis in the pleadings for the judgment
entered.” Nishimatsu Const. Co., Ltd. v. Hous.
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975);
see Wooten v. McDonald Transit Assoc., Inc., 788
F.3d 490, 497-98 (5th Cir. 2015) (applying
Nishimatsu). To determine the sufficiency of the
pleadings for entry of a default judgment, the United States
Court of Appeals for the Fifth Circuit looks to Federal Rule
of Civil Procedure 8. Wooten, 788 F.3d at 497-98.
8(a)(2) requires a pleading to contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
plaintiff must provide the defendant fair notice of his claim
and the “grounds upon which it rests.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). The
factual allegations in the complaint need only “be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Id. (citations omitted). While “detailed
factual allegations” are not required, pleadings that
“are no more than conclusions, are not entitled to [an]
assumption of truth.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
Sufficiency of the pleadings
Lemoyne's complete failure to answer the Complaint in a
timely manner or at any time since the Court's entry of
default, a default judgment is procedurally warranted.
Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir.
1998); see Capital One Auto Fin. v. Nabors, Inc.,
4:16-cv-244, 2019 WL 1320429, at *2 (N.D. Miss. Mar. 22,
2019) (weighing relevant Lindsey factors for default
where party fails to respond and finding default procedurally
warranted); Fagan v. Lawrence Nathan Assocs., Inc.,
957 F.Supp.2d 784, 803 (E.D. La. 2013) (weighing and finding
same). As such, to determine the sufficiency of Grand
Biscayne's pleadings, the Court accepts all well-pled
factual allegations in the Complaint as true. U.S. of Am.
for Use of M-Co Const., Inc. v. Shipco General, Inc.,
814 F.2d 1011, 1014 (5th Cir. 1987) (“[T]he
plaintiff's well-[pled] factual allegations are taken as
true, except regarding damages.”).
Plaintiffs' breach of contract and tortious ...