United States District Court, M.D. Florida, Fort Myers Division
THE HANSON GROUP, LLC, a Georgia limited liability company, Plaintiff,
TOTAL CONTAINMENT SOLUTIONS, INC., Defendant.
OPINION AND ORDER 
SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Plaintiff's Motion
for Default Judgment (Doc. 14) filed on August 1, 2017. No
response has been filed and the time to do so has expired.
For the reasons set forth below, the motion is
Hanson Group, LLC (“Hanson”) is a seller and
distributor of raw materials used to make industrial
containment liners and coatings. (Doc. 1, ¶ 5).
Defendant Total Containment Solutions, Inc.
(“TCS”) is a manufacturer and seller of
industrial containment liners and coatings. (Id. at
February 2014, Hanson sold and provided raw materials to
Defendant for use in manufacturing waste water containment
products for the fracking industry, pursuant to the terms of
an Application for Credit submitted by Defendant and Hanson
Group Standard Terms and Conditions of Sale Including Limited
Warranty (“Terms and Conditions”). (Doc. 1 at
¶¶ 7-12). Hanson attached copies of the Application
for Credit and Terms and Conditions to the Complaint as
Exhibits A and B, respectively. (See id.).
Pursuant to the terms, TCS guaranteed and agreed that payment
for materials purchased would be made within 30 days after
the date of the product invoice. (Id. at ¶ 8).
And in consideration of the extension of this credit from
Hanson, TCS agreed to pay all reasonable legal fees, costs
and collection fees incurred by Hanson in the event payment
was not timely received. (Id.)
alleges that beginning in January 2015 and continuing
thereafter, Defendant failed and refused to make payments due
to Hanson for materials that were purchased, delivered, and
invoiced. (Doc. 1, ¶ 13). Therefore, Plaintiff filed a
Complaint for breach of contract and account stated. Hanson
attached copies of the unpaid invoices to the Complaint as
Composite Exhibit C. (See id.at ¶ 14). Hanson
alleges that it demanded payment from Defendant, Defendant
acknowledged that the debt was due and owing, but Defendant
failed and refused to make payment of the amounts due and
owing. (Id. at ¶ 15). As of the date of the
filing of the Complaint, May 1, 2017, Hanson states that a
total of $456, 502.50, plus finance charges and interest,
remained due and owing from Defendant. (Id. at
¶ 14). The Terms and Conditions attached to the
Complaint set forth that invoices that are not paid within 30
days are subject to a finance charge of 1.5% per month, and
that Hanson is entitled to the recovery of attorneys'
fees and costs for any legal action to recover amounts due
under the contract. (See Id. at
¶¶ 11, 12, 17 & Ex. B).
service of the Complaint on Defendant, TCS has not made an
appearance in this case; therefore a Clerk's Default
(Doc. 11) was entered on June 27, 2017. Hanson now seeks a
default judgment against TCS and an award of costs and
attorneys' fees. (Doc. 14).
of the Federal Rules of Civil Procedure establishes a
two-step procedure for obtaining default judgment.
SeeFed. R. Civ. P. 55. First, when a defendant fails
to plead or otherwise defend a lawsuit, the clerk of the
court must enter a clerk's default against the defendant.
Cohan v. Rist Properties, LLC, No. 2:14-cv-439-FTM,
2015 WL 224640, at *1-2 (M.D. Fla. Jan. 15, 2015) (citing
Fed.R.Civ.P. 55(a)). Second, after receiving the clerk's
default, the court can enter a default judgment provided the
defendant is not an infant or incompetent. Id.
(citing Fed.R.Civ.P. 55(b)(2)); see also Solaroll Shade
& Shutter Corp. v. Bio-Energy Sys. Inc., 803 F.2d
1130, 1134 (11th Cir. 1986) (stating a default judgment may
be entered “against a defendant who never appears or
answers a complaint, for in such circumstances the case never
has been placed at issue.”).
entry of a clerk's default, however, does not per
se warrant an entry of default judgment. Rather, a court
may enter a default judgment only if “the well-pleaded
allegations in the complaint, which are taken as true due to
the default, actually state a substantive cause of action and
that there is a substantive, sufficient basis in the
pleadings for the particular relief sought.” Tyco
Fire & Sec., LLC v. Alcocer, 218 F. App'x 860,
863 (11th Cir. 2007); Nishimatsu Constr. Co., Ltd. v.
Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975) (“The defendant, by his default, admits the
plaintiff's well-pleaded allegations of fact, is
concluded on those facts by the judgment, and is barred from
contesting on appeal the facts thus established . . . A
default judgment is unassailable on the merits but only so
far as it is supported by well-pleaded allegations, assumed
to be true.” (citations omitted)). “The defendant
is not held to admit facts that are not well-pleaded or to
admit conclusions of law . . . [A] default is not treated as
an absolute confession of the defendant of his liability and
of the plaintiff's right to recover.”
Nishimatsu, 515 F.2d at 1206. In considering a
motion for default judgment, courts must “examine the
sufficiency of plaintiff's allegations to determine
whether the plaintiff is entitled to” relief. PNC
Bank, N.A. v. Starlight Props. & Holdings, LLC, No.
6:13-cv-408, 2014 WL 2574040, at *1 (M.D. Fla. June 9, 2014)
(citation omitted). With these principles in mind, the Court
will address Hanson's Motion for Default Judgment.
elements of a breach of contract cause of action are: (1) a
valid contract, (2) a material breach, and (3) damages.
Havens v. Coast Florida, P.A., 117 So.3d 1179, 1181
(Fla. 2d DCA 2013). Here, Hanson alleged that TCS entered
into a contract with Hanson, that TCG breached the contract
by refusing to pay that debt, and that TCG owes Hanson more
than $456, 502.50. Thus, the Court finds that plaintiff has
adequately pled a breach of contract, which allegations are
deemed admitted, supporting the entry of a default judgment
regard to damages, Plaintiff submitted an Affidavit of Lee
Hanson, managing member of Hanson. (Doc. 14-1, “Hanson
Affidavit”.) In the Hanson Affidavit, Plaintiff asserts
a claim of $456, 502.50, excluding finance charges, interest,
and attorney's fees and costs incurred in seeking
enforcement of the contract. Specifically, as of August
1, 2017, Plaintiff asserts that the total amount of
interest accrued at the rate of 1.5% per month in accordance
with the Terms and Conditions is $181, 362.24, and interest
will continue to accrue at the per diem rate of $225.12 until