United States District Court, S.D. Florida
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR FINAL DEFAULT JUDGMENT
G. TORRES UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Nextwave Enterprises, LLC's
(“Plaintiff”) motion for final default judgment
against Waterstone Construction and Development, Inc., and
Edward M. Wasser (“Defendants”). [D.E. 41].
Defendant failed to file a response to Plaintiff's motion
and the time to do so has now passed. Therefore, the matter
is now ripe for disposition. Based on a review of the motion
and the underlying record in this case, we recommend that
Plaintiff's motion be GRANTED in part
and DENIED in part.
APPLICABLE PRINCIPLES AND LAW
of the Federal Rules of Civil Procedure sets forth a two-step
process for obtaining default judgment. First, when a
defendant fails to plead or otherwise defend a lawsuit, the
clerk of court is authorized to enter a clerk's default.
See Fed. R. Civ. P. 55(a). Second, after entry of
the clerk's default, the court may enter default judgment
against the defendant so long as the defendant is not an
infant or incompetent person. Fed.R.Civ.P. 55(b)(2).
“The effect of a default judgment is that the defendant
admits the plaintiff's well-pleaded allegations of fact,
is concluded on those facts by entry by the judgment and is
barred from contesting on appeal the facts thus
established.” Buchanan v. Bowman, 820 F.2d
359, 361 (11th Cir. 1987) (internal quotation and citation
must review the sufficiency of the complaint before
determining whether a moving party is entitled to default
judgment pursuant to Rule 55(b). See United States v.
Kahn, 164 Fed.Appx. 855, 858 (11th Cir. 2006) (citing
Nishimatsu Constr. Co. v. Houston Nat'l Bank,
515 F.2d 1200, 1206) (5th Cir. 1975)). “While a
complaint . . . does not need detailed factual allegations,
” a plaintiff's obligation to provide the grounds
of his entitlement to relief “requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). If the admitted facts are sufficient to establish
liability, the Court must then ascertain the appropriate
amount of damages and enter final judgment in that amount.
See Nishimatsu, 515 F.2d at 1206; see
also PetMed Express, Inc. v. MedPets.com, Inc., 336
F.Supp.2d 1213, 1216 (S.D. Fla. 2004).
may be awarded only if the record adequately reflects the
basis for the award, which can be shown with submission of
detailed affidavits establishing the facts necessary to
support entitlement to the damages requested. See Adolph
Coors Co. v. Movement Against Racism and the Klan, 777
F.2d 1538, 1544 (11th Cir. 1985). An evidentiary hearing on
the appropriate amount of damages is not required by Rule 55,
and it is within the Court's discretion to choose whether
such a hearing should takes place. See SEC v. Smyth,
420 F.3d 1225, 1232 n.13 (11th Cir. 2005); Tara
Productions, Inc. v. Hollywood Gadgets, Inc., 449
Fed.Appx. 908, 911-12 (11th Cir. 2011). With this guidance in
mind, we turn to the allegations found within Plaintiffs'
Complaint to determine whether default judgment is
motion seeks an entry of final default judgment against
Defendants for the breach of a settlement agreement that the
parties executed on June 22, 2017. As part of that
settlement, Defendants agreed to making monthly payments, due
by the end of each month beginning in July 2017, and each
month thereafter until the outstanding balance of $214,
500.00 was fully paid. [D.E. 31-1]. Defendants specifically
agreed in paragraph six of the settlement agreement that, if
any default is not cured within ten business days, Plaintiff
will be entitled to the full balance minus any payments made:
If default be made in the payment of any installment due
herein, and if such default is not cured within ten (10)
business days, then Plaintiff shall be entitled to entry of
Final Judgement, without the necessity of a hearing, for the
full balance owed $287, 599.60, minus payments made.
Id. As the parties entered into the settlement
agreement, the Court approved it and dismissed the action
with prejudice. The Court retained jurisdiction to enforce
the terms of the settlement agreement Plaintiff alleges that
Defendants only delivered seventeen payments pursuant to the
settlement agreement, with the last payment received on or
about January 4, 2019. Id. Plaintiff further alleges
that Defendants failed to comply with the terms of the
settlement agreement and to deliver the required monthly
payments, despite Plaintiff's repeated demands. [D.E.
31]. As such, Plaintiff contends that it is entitled to (1) a
final default judgment in the amount of $287, 599.60 minus
seventeen payments made in the amount of $38, 500.00, which
totals a final judgment amount of $249, 099.60, (2) costs
associated with the claim for breach of the settlement
agreement in the amount of $496.00, and (3) reasonable
attorneys' fees in the amount of $2, 415.00.
upon a full review of the record, Plaintiff's motion for
default judgment is well taken for the full amount requested
in the motion - $249, 099.60. This request is well supported
in the settlement agreement [D.E. 41-1] because Defendant
failed to satisfy its obligation to pay the agreed upon
monthly sum and failed to correct this violation of the
agreement within the five (5) business day cure period.
Id. The motion may also be granted based on the lack
of opposition under S.D. Fla. Local R. 7.1. In addition, the
Court's review of the substantive grounds supporting the
motion shows that Plaintiff should be entitled to the damages
sought. Therefore, Plaintiff's motion for final default
judgment against Defendant in the amount of $249, 099.60
should be GRANTED.
second issue is whether Plaintiff should be entitled to fees
and costs pursuant to section 9 of the settlement agreement.
Id. Attorney fees require competent and substantial
evidence to determine reasonableness. Plaintiff has provided
adequate proof via an affidavit of their entitlement to fees
[D.E. 41-1] in the amount of $2, 415.00. But, Plaintiff has
failed to provide an adequate basis for a cost award in the
amount of $496.00. Therefore, Plaintiff's motion for
final default judgment should be GRANTED as
to the unpaid settlement amount and the fee award and
DENIED as to Plaintiff's motion for
on the uncontested facts, we hereby
RECOMMEND that Plaintiff's motion for
final default judgment [D.E. 41] ...