United States District Court, S.D. Florida
ORDER ON MOTION FOR FINAL DEFAULT JUDGMENT
BLOOM, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Plaintiff ICool, USA,
Inc.'s (“ICool”) Motion for Default Final
Judgment, ECF No.  (“Motion”), filed pursuant
to Federal Rule of Civil Procedure 55(b)(2) against
Defendants BYS Wholesalers, LLC (“BYS”) and
William Sands (“Sands”). A Clerk's Default
was entered against Defendants BYS and Sands on February 25,
2019, ECF No. , and March 4, 2019, ECF No. ,
respectively, after they failed to answer or otherwise plead
to the amended complaint, despite having been properly
served. The Court has carefully considered the Motion, the
record in this case and the applicable law, and is otherwise
fully advised. For the following reasons, ICool's Motion
initiated this action on October 5, 2018, and filed the First
Amended Complaint, ECF No.  (“Amended
Complaint”), on January 18, 2019, alleging claims
against BYS and Sands for breach of implied-in-law
contract/unjust enrichment (Counts 3 and 4), goods sold and
delivered (Counts 6 and 7), and fraud (Counts 8 and
Amended Complaint alleges that Sands placed four orders for
R410A refrigerant gas from ICool during September 2017 in the
total amount of $306, 880.00, and that the cylinders were
delivered to BYS's warehouse in Port St. Lucie, Florida,
in September and October 2017. Id. ¶¶
17-20. Neither Sands nor BYS paid for these shipments.
Id. ¶¶ 22, 30. Furthermore, to induce
ICool to sell the cylinders on a line of credit, Sands
represented to ICool that he was an agent of MBRB and
provided MBRB's business documents to ICool for the
purpose of opening an account on which he could purchase
goods on credit. Id. ¶¶ 11-15). As ICool
later learned, Sands was not and has never been authorized to
act on behalf of MBRB. See ECF No. [87-2] at
75:7-77:1; ECF No. [87-3] at 63:23-65:1. ICool has been
damaged by Sands and BYS's conduct in the amount of $306,
880.00, which represents the amount owed for the four orders
placed by Sands. ECF No.  ¶¶ 21, 31; ECF No.
[87-1] ¶ 12.
Motion, ICool seeks the entry of final default judgment
against BYS and Sands on its claims against them for breach
of implied-in-law contract/unjust enrichment, goods sold and
delivered, and fraud.
to Federal Rule of Civil Procedure 55(b), the Court is
authorized to enter a final judgment of default against a
party who has failed to plead in response to a complaint.
This Circuit maintains a “strong policy of determining
cases on their merits and we therefore view defaults with
disfavor.” In re Worldwide Web Sys., Inc., 328
F.3d 1291, 1295 (11th Cir. 2003). Nonetheless, default
judgment is entirely appropriate and within the district
court's sound discretion to render where the defendant
has failed to defend or otherwise engage in the proceedings.
See, e.g., Tara Prods., Inc. v.
Hollywood Gadgets, Inc., 449 Fed.Appx. 908, 910 (11th
Cir. 2011); Dawkins v. Glover, 308 Fed.Appx. 394,
395 (11th Cir. 2009); In re Knight, 833 F.2d 1515,
1516 (11th Cir. 1987); Wahl v. McIver, 773 F.2d
1169, 1174 (11th Cir. 1985); Pepsico, Inc. v.
Distribuidora La Matagalpa, Inc., 510 F.Supp.2d 1110,
1113 (S.D. Fla. 2007); see also Owens v. Benton, 190
Fed.Appx. 762 (11th Cir. 2006) (default judgment within
district court's direction).
defendant's “failure to appear and the Clerk's
subsequent entry of default against him do[es] not
automatically entitle Plaintiff to a default judgment.”
Capitol Records v. Carmichael, 508 F.Supp.2d 1079,
1083 (S.D. Ala. 2007). Indeed, a default is not “an
absolute confession by the defendant of his liability and of
the plaintiff's right to recover, ” Pitts ex
rel. Pitts v. Seneca Sports, Inc., 321 F.Supp.2d 1353,
1357 (S.D. Ga. 2004), but instead acts as an admission by the
defaulted defendant as to the well-pleaded allegations of
fact in the complaint. See Eagle Hosp. Physicians, LLC v.
SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir.
2009) (“A 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.”)
(citations omitted); Descent v. Kolitsidas, 396
F.Supp.2d 1315, 1316 (M.D. Fla. 2005) (“the
defendants' default notwithstanding, the plaintiff is
entitled to a default judgment only if the complaint states a
claim for relief”); GMAC Commercial Mortg. Corp. v.
Maitland Hotel Assocs., Ltd., 218 F.Supp.2d 1355, 1359
(M.D. Fla. 2002) (default judgment is appropriate only if
court finds sufficient basis in pleadings for judgment to be
entered, and that complaint states a claim). Stated
differently, “a default judgment cannot stand on a
complaint that fails to state a claim.” Chudasama
v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th
Cir. 1997). Therefore, before granting default judgment,
“the district court must ensure that the well-pleaded
allegations of the complaint . . . actually state a 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 Fed.Appx.
860, 863 (11th Cir. 2007).
Breach of Implied-in-Law Contract/Unjust Enrichment (Counts 3
Amended Complaint sufficiently alleges facts which
demonstrate claims for breach of implied-in-law
contract/unjust enrichment against BYS and Sands. To state a
claim for unjust enrichment under Florida law, a party must
allege “a benefit conferred upon a defendant by the
plaintiff, the defendant's appreciation of the benefit,
and the defendant's acceptance and retention of the
benefit under circumstances that make it inequitable for him
to retain it without paying the value thereof.”
Alvarez v. Royal Caribbean Cruises, Ltd., 905
F.Supp.2d 1334, 1341 (S.D. Fla. 2012) (quoting Ruck Bros.
Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So.2d
205, 207 (Fla. 2d DCA 1995)).
ICool alleged that Sands ordered cylinders containing
refrigerant gas that were delivered to BYS's warehouse in
Port St. Lucie, Florida. Sands signed for each of the four
deliveries indicating that the cylinders had been delivered
into his possession at BYS's warehouse. ECF No. 
¶¶ 20, 51, 60. Thus, ICool conferred a benefit on
Sands and BYS-the cylinders- and Sands and BYS voluntarily,
and with knowledge, accepted and retained the cylinders.
Moreover, the circumstances are such that it would be
inequitable for Sands and BYS to retain the cylinders without
paying the value thereof. See, e.g., Am.
Contractors Indem. Co. v. Brown & Luke Contracting,
Inc., No. 3:06-CV-356-J-MCR, 2007 WL 2826230, at *2
(M.D. Fla. Sept. 25, 2007) (concluding that it would be
inequitable to allow a defendant to retain payment beyond
that which it was rightfully owed and granting default
addition, because Sands committed fraud in placing the orders
with ICool, as explained in detail below, Sands can be held
individually liable for unjust enrichment along with BYS.
See, e.g., Munder v. Circle One Condo.,
Inc., 596 So.2d 144, 145 (Fla. 4th DCA 1992); Avila
S. Condo. Ass'n v. Kappa Corp., 347 So.2d 599 (Fla.
1977); see also Segal v. Rhumbline Int'l, Inc.,
688 So.2d 397, 399 (Fla. 4th DCA 1997) (finding that director
of defendant corporation may be individually liable because
complaint alleged that he had orchestrated the false
representations made to the plaintiffs and had also allowed
his name to be associated with the representations made);
Brinker v. W.P. McDevitt & Assocs., Inc., 693
So.2d 712, 712 (Fla. 4th DCA 1997) (reversing dismissal of
fraud in the inducement claims where the plaintiff alleged
that two individual defendants fraudulently induced him to
enter into an employment contract with their insurance agency
for the purpose of bringing his “book of
business” into the agency and that defendants never
intended to let him retain ownership of the
“book” or pay him its value if his employment
should be terminated); Nicholson v. Kellin, 481
So.2d 931, 935 (Fla. 5th DCA 1985) (finding that the
individual director of a corporation could be held liable for
fraud where he orchestrated the false representations made to
the plaintiffs and had also allowed his name to be associated
with the representations made); Roth v. Nautical
Eng'g Corp., 654 So.2d 978, 979-80 (Fla. 4th DCA
1995) (finding corporate officer individually liable for
fraud committed while acting as corporate representative.).
on these allegations, ICool has clearly satisfied the
elements of a claim for breach of implied-in-law
contract/unjust enrichment against BYS and Sands, and ...