United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE.
the Court is Plaintiff's motion for default judgment
(Doc. 7). For the following reasons, the motion is
FACTUAL AND PROCEDURAL BACKGROUND
nonparties, Yancey and Big D's, entered into two separate
installment sale contracts (“the Contracts”).
Doc. 1 ¶¶ 7-8. Plaintiff is the assignee of
Yancey's interest in and rights and remedies under the
Contracts, while Defendant is the guarantor of Big D's
indebtedness, obligations, and liabilities under the
Contracts. Id. ¶¶ 9-10. Plaintiff claims
that Big D's and Defendant “defaulted under each of
the Contracts and the Guaranty by, among other things,
failing to pay amounts as they became due.”
Id. ¶ 11.
October 6, 2017, after Big D's filed for bankruptcy and
failed to remit payments to Plaintiff pursuant to its Chapter
11 Plan of Reorganization, Plaintiff's attorney sent
Defendant a letter via certified mail. Docs. 1 ¶ 12; 1-6
at 2. In that letter, Plaintiff's attorney informed
Defendant that Big D's was “unable to cure the
default” and that Plaintiff is seeking from Defendant
“immediate payment of the total outstanding
indebtedness owed pursuant to the terms of the security
agreements.” Id. The letter also advised
Defendant, as notice pursuant to O.C.G.A. § 13-1-11,
that “unless full payment of the outstanding principal
and interest is made within ten (10) days from receipt
hereof, [Plaintiff] will have no alternative but to enforce
the provisions in the loan documents relative to the payment
of statutory attorneys' fees, in addition to the
provisions regarding principal, interest, late fees, and
costs of collection.” Id.
October 18, 2017, Plaintiff filed suit against Defendant,
seeking “outstanding and unpaid indebtedness due under
the Contracts as of October 15, 2017” in the amount of
$342, 222.17, “with additional interest to accrue at
the total per diem rate of $41.18 per day thereafter.”
Doc. 1 ¶ 14. Plaintiff also seeks “attorneys'
fees and expenses of collection, pursuant to the Contracts,
the Guaranty and applicable law.” Id. ¶
16. Defendant was served with a summons on October 25. Doc. 5
at 1. Because Defendant did not answer or otherwise defend,
Plaintiff obtained an entry of default on December 6. Doc. 6.
The Plaintiff now moves for default judgment. Doc. 7.
Defendant has not responded to Plaintiff's motion.
to Fed.R.Civ.P. 55(a), the Clerk of Court must enter a
party's default if that party's failure to plead or
otherwise defend an action against it “is shown by
affidavit or otherwise.” After default has been
entered, the Clerk may enter a default judgment on the
plaintiff's request if the claim “is for a sum
certain or a sum that can be made certain by computation,
” as long as the party is not a minor or incompetent
and has not made an appearance. Fed.R.Civ.P. 55(b)(1). In all
other cases, the plaintiff must apply to the Court for a
default judgment. Fed.R.Civ.P. 55(b)(2). The Court must hold
an evidentiary hearing to determine damages unless all the
essential evidence is already on the record. See S.E.C.
v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005)
(“We have held that no such hearing is required where
all essential evidence is already of record.”); see
also Fed. R. Civ. P. 55(b)(2) (“The court
may conduct hearings . . . .” (emphasis
the Clerk's entry of default, a defendant is deemed to
admit all well-pleaded factual allegations in the complaint.
Nishimatsu Const. Co., Ltd. v. Houston Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). An entry of
default against the defendant does not establish that the
plaintiff is entitled to a default judgment, however. The
defendant is not deemed to admit (1) facts that are not
well-pleaded or (2) conclusions of law. Id.
“The Court must consider whether the unchallenged facts
constitute a legitimate cause of action, since the party in
default does not admit a mere conclusion of law. In
considering any default judgment, the Court must consider (1)
jurisdiction, (2) liability, and (3) damages.”
Johnson v. Rammage, 2007 WL 2276847, at *1 (M.D.
Ga.) (citing Pitts v. Seneca Sports, Inc., 321
F.Supp.2d 1353, 1356 (S.D. Ga. 2004)). The defendant is not
deemed to admit the plaintiff's allegations relating to
the amount of damages, also. Patray v. Nw. Publ'g,
Inc., 931 F.Supp. 865, 869 (S.D. Ga. 1996); see also
Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266
(11th Cir. 2003) (“A court has an obligation to assure
that there is a legitimate basis for any damage award it
enters . . . .”).
Jurisdiction and Liability
factual allegations in the complaint, deemed admitted by
Defendant, establish that Plaintiff is a Delaware corporation
with its principal place of business in Nashville, Tennessee
and that Defendant is a citizen of the State of Georgia. Doc.
1 ¶¶ 1-2. The amount in controversy exceeds $75,
000. Id. ¶ 3. Therefore, the Court possesses
diversity jurisdiction over this case pursuant to 28 U.S.C.
§ 1332. The allegations also show that the Court holds
personal jurisdiction over Defendant. Id. ¶ 4.
the factual allegations show that Defendant is a guarantor of
the debts owed to Plaintiff, that he has failed to pay the
amounts owed under the Contracts, and that Plaintiff has a
right to recover the amounts owed. See Docs. 1; 1-1;
1-3; 1-4; 1-5; 1-6 (setting forth the terms of the Contracts
and Defendant's Guaranty, the assignment of the interest
and rights under the Contracts to Plaintiff, and
evidentiary hearing is not necessary to determine damages
because there ...