United States District Court, S.D. Georgia, Dublin Division
August 11, 2017, Plaintiff Caterpillar Financial Services
Corporation ("Caterpillar") filed a Complaint
seeking recovery of damages on defaulted guaranties executed
by-Defendant Dedric Nesbitt.
Nesbitt was served with process but failed to appear, plead
or otherwise defend the action within the prescribed time
period. Accordingly, the Clerk of Court entered default
against Defendant Nesbitt on October 2, 2017, (Doc. No. 7.)
On October 26, 2017, Plaintiff Caterpillar filed a motion for
default does not in itself warrant the court in entering a
default judgment. There must be a sufficient basis in the
pleadings for a judgment entered .... The defendant is not
held to admit facts that are not well-pleaded or to admit
conclusions of law." Nishimatsu Constr. Co. v.
Houston Nat'1 Bank, 515 F.2d 1200, 1206 (5th Cir.
1975),  A defendant, by his default, is only
deemed to have admitted the "plaintiff's
well-pleaded allegations of fact." Id.
"[T]hree distinct matters [are] essential in considering
any default judgment: (1) jurisdiction; (2) liability; and
(3) damages." Pitts ex rel. Pitts v. Senecar Sports,
Inc., 321 F.Supp.2d 1353, 1356 (S.D. Ga. 2004).
parties in this case are diverse: Caterpillar is a Delaware
corporation with its principal place of business in
Tennessee. (Compl. ¶ 1-) Caterpillar claims it is owed
well over $75, 000, so the amount in controversy requirement
is satisfied. (Id. ¶ 3 & Prayer for Relief.)
The Court therefore has subject matter jurisdiction over this
matter pursuant to 28 U.S.C. § 1332. Moreover, this
Court has personal jurisdiction over Defendant Nesbitt
because he resides in the State of Georgia. (See id.
on Caterpillar's allegations and the evidence of record,
the Court is satisfied that the well-pleaded allegations of
the complaint state a cause of action against Defendant
Nesbitt for the recovery of amounts owed under the Guaranties
executed by Defendant Nesbitt. In particular, Plaintiff has
submitted four Installment Sales Contracts wherein non-party
GCF Services, LLC, financed the purchase of heavy
equipment. These Contracts are attached as Exhibits 1
through 4 to the Affidavit of Crayonnia Mallory, a special
account representative for Plaintiff Caterpillar. Defendant
Nesbitt executed two Guaranties, dated May 14 and May 22,
2015, obligating him to pay all present and future
indebtedness, obligations, and liabilities of GCF Services,
LLC. The Guaranties are attached as Exhibits 5 and 6 to the
complaint, Caterpillar alleges that GCF Services, LLC, has
failed to make the required payments under its Chapter 11
Plan of Reorganization and that the Contracts are in default.
(Compl. ¶ 14.) Caterpillar notified Defendant Nesbitt in
writing of the defaults, accelerated the indebtedness due
under the Contracts, and demanded payment. (Id.
¶ 15 & Ex. 11.) Defendant Nesbitt has failed to pay the
amount due under the defaulted Contracts. (Id.
these facts, Plaintiff Caterpillar has established the
liability of Defendant Nesbitt under the Contracts through
the executed Guaranties.
well-pleaded facts in the complaint are deemed admitted, [a
plaintiff's] allegations relating to the amount of
damages are not admitted by virtue of default; rather, the
court must determine both the amount and character of
damages." Whitney Nat'l Bank v. Flying- Tuna,
LLC, No. 11-024 9, 2011 WL 4702916, at *3 (S.D. Ala.
Oct. 4, 2011). Ordinarily, unless a plaintiff's claim
against a defaulting defendant is for a sum certain, the law
"requires the district court to hold an evidentiary
hearing" to fix the amount of damages. S.E.C. v.
Smyth, 420 F.3d 1225, 1231 (11th Cir. 2005). However, no
hearing is needed "when the district court already has a
wealth of evidence from the party requesting the hearing,
such that any additional evidence would be truly unnecessary
to a fully informed determination of damages."
Id. at 1232 n.13. Because this Court has all the
relevant evidence to consider damages without holding an
evidentiary hearing, the Court will determine damages at this
the affidavit of Crayonnia Mallory, Plaintiff Caterpillar
seeks outstanding and unpaid indebtedness on each contract in
principal and accrued interest as of October 3, 2017, with
additional interest to accrue each day from October 3, 2017
until the date of judgment, plus insufficient funds fees and
reasonable attorney's fees.
respect to attorney's fees, the Court finds that each of
the four Contracts provide that the debtor will be liable for
reasonable attorney's fees. Further, Plaintiff
Caterpillar has complied with the statutory requirements of
O.C.G.A. § 13-1-11 by providing Defendant Nesbitt with
written notice of its intent to collect attorney's
fees. Because the Contracts do not identify a
specific percentage for recovery of attorney's fees, the
statute sets the amount at 15 percent of the first $500.00 of
principal and interest owing and 10 percent of the amount of
principal and interest owing in excess of $500.00. See
O.C.G.A. § 13-1-11(a)(2}.
the sworn affidavit of Crayonnia Mallory, the evidence of
record, and the relevant law, the Court makes the following
findings with respect to each Contract and the damages for