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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:22-cv-23223-GAYLES

VENUS CONCEPT USA INC., a

Delaware corporation,

Plaintiff,

v.

EXOTIC V’S BEAUTY BAR AND SPA, 

a California company, and VICTORIA 

NABORNE, an individual,

Defendants.

___________________________________/

MOTION FOR DEFAULT FINAL JUDGMENT AGAINST DEFENDANTS

Plaintiff, Venus Concept USA Inc. (“Plaintiff”), by and through the undersigned attorneys 

and pursuant to Fed. R. Civ. P. 55(b)(2), hereby requests entry of a default final judgment against

Defendants, Exotic V’s Beauty Bar and Spa (“Exotic V’s”) and Victoria Naborne (“Naborne,”

with Exotic V’s, “Defendants”), and in support states:

INTRODUCTION

1. On October 4, 2022, Plaintiff commenced this action by filing a Complaint [ECF 

No. 1] against Defendants arising out of Defendants’ default in regard to the “Subscription 

Agreement” and “Personal Guaranty” entered into between Plaintiff and Defendants.

2. Service of process was perfected on Defendants on April 3, 2023. See ECF No. 8, 

9.

3. Pursuant to Fed. R. Civ. P. 12, Defendants were obligated to file an Answer or 

otherwise respond within 21 days of being served with a Complaint, on or before April 24, 2023. 

Failure to do results in the Clerk’s entry of a default under Fed. R. Civ. P. 55(a), which states: 

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“When a party against whom a judgment for affirmative relief is sought has failed 

to plead or otherwise defend, and that failure is shown by affidavit or otherwise, 

the clerk must enter the party’s default.”

4. To date, each Defendant has failed to file or serve any response as required by law 

to Plaintiff’s Complaint. 

5. On May 8, 2023, a Clerk’s Default [ECF No. 12] was entered as to each Defendant.

6. Given Defendants’ continued failure to participate in the instant lawsuit, Plaintiff 

is seeking from the Court a Default Final Judgment against Defendants under Fed. R. Civ. P. Rule 

55(b).

7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 

1332 because (i) complete diversity of citizenship exists between Plaintiff and Defendants; and (ii) 

the amount in controversy exceeds $75,000.00, exclusive of interest and costs.

8. Plaintiff is a Delaware corporation conducting business in Miami-Dade County, 

Florida and with its principal place of business located in Florida and is a citizen of Delaware and 

Florida.

9. Defendant Exotic V’s is a California company and is a citizen of California.

10. Defendant Naborne is a citizen of California and is not a minor or incompetent 

person, nor in the military service of the United States. See Declaration as to Military Service

attached hereto as Exhibit A.

MEMORANDUM OF LAW

I. APPLICABLE LAW

It is well-settled that a “district court has the authority to enter default judgment for failure 

. . . to comply with its orders or rules of procedure.” Wahl v. McIver, 773 F.2d 1169, 1174 (11th 

Cir. 1985). Rule 55 of the Federal Rules of Civil Procedure provides for entry of default and default 

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judgment where a defendant “has failed to plead or otherwise defend as provided by these rules.” 

Fed. R. Civ. P. 55(a). Although modern courts do not favor default judgments, they are appropriate 

when the adversary process has been halted because of an unresponsive party. Jones v. Lewis, No. 

17-81046-CIV, 2018 U.S. Dist. LEXIS 99218, at *6 (S.D. Fla. June 12, 2018) (quoting Flynn v. 

Angelucci Bros. & Sons, Inc., 448 F. Supp. 2d 193, 195 (D.D.C. 2006). Where, as here, Defendants

have failed to respond to or otherwise acknowledge the pendency of a lawsuit against them after 

being served, entry of default judgment may be appropriate.

On a motion for default judgment under Fed. R. Civ. P. 55(b)(2), the Court accepts as true 

the facts alleged in the complaint: “[b]y defaulting, the [defendant is] deemed to have ‘admit[ted] 

the plaintiff’s well-pleaded allegations of fact’ for purposes of liability.” See Cotton v.

Massachusetts Mut. Life Ins. Co., 402 F.3d 1267, 1278 (11th Cir. 2005). If the admitted facts 

establish the defaulting defendant’s liability, the plaintiff is entitled to relief against that defendant.

Shandong Airlines Co. v. CAPT, LLC, 650 F. Supp. 2d 1202, 1206 (M.D. Fla. 2009) (citing 

Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987). Here, the facts alleged in Plaintiff’s 

Complaint establish Defendants’ liability as to Counts I-V.

Additionally, “[a]lthough a defaulted defendant admits well-pleaded allegations of

liability, allegations relating to the amount of damages are not admitted by virtue of default. Rather,

the Court determines the amount and character of damages to be awarded.” Miller v. Paradise of 

Port Richey, Inc., 75 F. Supp. 2d 1342, 1346 (M.D. Fla. 1999) (citation omitted). Damages may 

be awarded without an evidentiary hearing if the record adequately reflects the basis for an award

via “‘a demonstration by detailed affidavits establishing the necessary facts.’” Adolph Coors Co.

v. Movement Against Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (quoting United

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Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)); see also SEC v. Smyth, 420 F.3d

1225, 1231–32 (11th Cir. 2005). In other words, a court may award damages “as long as the record

contains evidence allowing the court to ascertain damages from ‘mathematical calculations’ and

‘detailed affidavits.’” Holtz v. Bagel Mkt., Inc., No. 12-62040-CIV, 2013 WL 12141515, at *2

(S.D. Fla. Apr. 29, 2013) (quoting Adolph Coors, 777 F.2d at 1543–44). 

II. SUMMARY OF FACTS 

Plaintiff is a medical aesthetic device company in the business of developing, 

commercializing and delivering minimally invasive and non-invasive medical aesthetic and hair 

restoration technologies and devices to its consumers, such as Defendants. See Compl., ¶6. On 

December 18, 2019, Plaintiff and Defendants entered into and executed the Subscription 

Agreement (“Subscription Agreement”) whereby Plaintiff promised to deliver certain medical 

aesthetic device(s), supplies and services (collectively, the “Goods”) in consideration for Exotic 

V's promise to pay the “Aggregate Amount” of $81,547.36 in certain monthly installments listed 

in the Subscription Agreement. See Compl., ¶7, Exhibit A. On the same day as the execution of 

the Subscription Agreement, Naborne executed and delivered a Personal Guaranty to Plaintiff 

(hereinafter the “Guaranty”), wherein Naborne guaranteed the full payment and punctual 

performance of all obligations of Exotic V’s under the Subscription Agreement. See Compl., ¶8

Exhibit A. 

Plaintiff fully performed under the Subscription Agreement by providing Defendants with 

the certain medical aesthetic device(s) and supplies (the “Goods”). See Compl., ¶9. Defendants,

however, have defaulted under and materially breached the Subscription Agreement and Guaranty

by failing and refusing to pay the remaining amounts due and owing to Plaintiff pursuant to same 

since December 31, 2019. See Compl., ¶10. Upon the occurrence of a Default, the Subscription 

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Agreement allows for and provides Plaintiff with the right to immediately terminate the 

Subscription Agreement and to accelerate any and all payments remaining under the Subscription 

Agreement that would not have otherwise been due and owing but for the Default:

14. Effect of Default – In the event of any Default, [Plaintiff] may 

take any one of the following actions (separately or cumulatively): 

(i) terminate this Agreement with immediate effect and in such case 

the provisions of Section 15 below shall apply . . .

15. Effect of Termination or Expiration – In the event of 

termination or expiration of this Agreement, the following shall 

apply:

The [Defendants] shall pay forthwith (without notice) to [Plaintiff] 

as liquidated damages, and not as a penalty, an amount . . . equal to 

the aggregate of:

(i) Unpaid payments and other amounts payable hereunder 

and unpaid as of the date of Default [(i.e., December 31, 

2019)], and

(ii) The unpaid value of:

(A) Any remaining Monthly Installment payable 

from the date of Default, and

(B) Amounts otherwise payable under the 

Agreement, and

(iii) Any Enforcement Costs [(which include “all costs and 

expenses in respect of collection, legal fees, repossession, 

repair of System, enforcement of [Plaintiff’s] rights or 

remedies, sale[,] or re-lease costs or other realization costs)] 

incurred by [Plaintiff], and

(iv) Interest thereon [(at the rate of eighteen percent (18%) 

per annum)] from the date of the Default [(i.e., December 

31, 2019)] until payment in full.

Compl., ¶12, Exhibit A (emphasis supplied).

In connection with the above-quoted language, and because Defendants defaulted by

failing to pay all amounts due by their respective due dates or any time thereafter, Plaintiff, through 

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counsel, delivered to Defendants a Notice of Termination dated June 30, 2022, thereby terminating 

the Subscription Agreement and demanding payment of any and all amounts due under same, 

including interest, costs, and attorneys’ fees, as is allowable under the clear and unambiguous 

language of the Subscription Agreement. See Compl., ¶13, Exhibit B. 

III. LIABILITY

A. PLAINTIFF IS ENTITLED JUDGMENT ON ITS CLAIM FOR BREACH 

OF CONTRACT AGAINST DEFENDANTS (COUNT I).

Plaintiff has provided factual support pertaining to all elements for its breach of contract 

claim. To assert a claim for breach of contract, Plaintiff must show “(1) the existence of a contract, 

(2) a breach of the contract, and (3) damages resulting from the breach.” Rollins, Inc. v. Butland, 

951 So. 2d 860, 876 (Fla. 2d DCA 2006); see Greaney v. Lake Austin Properties I, Ltd., No. 6:11-

cv-1984-ORL-22KRS, 2012 U.S. Dist. LEXIS 206982, 2012 WL 13103149, *2 (M.D. Fla. Aug. 

6, 2012). Plaintiff “must also prove performance of its obligations under the contract or a legal 

excuse for its nonperformance.” Rollins, 951 So. 2d at 876.

Here, the undisputed facts indicate that Plaintiff and Exotic V’s entered into and executed 

the Subscription Agreement, whereby Plaintiff promised to deliver certain medical aesthetic 

device(s), supplies, and services in consideration for Exotic V’s promise to pay the Aggregate 

Amount of $81,547.36 pursuant to the Subscription Agreement. See Compl.¶7. Defendants’ failure 

to make the requisite payments due and owing constitutes an event of “Default” under the 

Subscription Agreement. See Subscription Agreement, § 13.a. (“Each of the following is a material 

default by [the Defendants]: The [Defendants] fail[] to make any payment or pay any other 

amounts due under this Agreement . . . within ten (10) days after the same is due and payable[.]”). 

See Compl. ¶ 11. Pursuant to the terms of the Subscription Agreement, as of June 2, 2023, both 

Defendants owe Plaintiff an aggregate amount of $119,634.78, consisting of the remaining value 

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of the Subscription Agreement, plus interest due on all amounts past due at a rate of 18% per 

annum, which has accrued since June 30, 2022. See Plaintiff’s Declaration of Damages attached 

hereto as Exhibit B. Default interest continues to accrue at $50.59 per day, and Plaintiff is also 

entitled to attorneys’ fees and costs pursuant to the Subscription Agreement. 

B. PLAINTIFF IS ENTITLED TO JUDGMENT ON ITS CLAIM FOR 

BREACH OF GUARANTY AGAINST NABORNE (COUNT II). 

The undisputed, substantiated, and well pled facts outlined above merit Default Final 

Judgment against Naborne. “A guaranty is a collateral promise to answer for the debt or obligation 

of another.” Kahama VI, LLC v. HJC LLC, No. 8:11-cv-2029-T-30TBM, 2013 WL 1760254, at 

*3 (M.D. Fla. Apr. 24, 2013) (quoting Fed. Deposit Ins. Corp. v. Univ. Anclote, Inc., 764 F.2d 

804, 806 (11th Cir. 1985). “In Florida, the elements of an action for breach of a guaranty arise 

from a debtor’s default and the guarantor’s subsequent failure to pay.” Id. (quoting Bank First v. 

Guillem, No. 6:09-cv-152-Orl-31KRS, 2009 WL 1930190, at *5 (M.D. Fla. 2009).

Additionally, under Florida law “where [a] guaranty is absolute, the guarantor becomes

liable upon non-payment by the principal, and the person in whose favor the guaranty runs has no 

duty to first pursue the principal before resorting to the guarantors.” PNC Bank, N.A. v. Monument 

Ctr., LLC, Case No. 6:15-cv-859, 2016 U.S. Dist. LEXIS 109297, *14-15 (M.D. Fla. July 27, 

2016) (citing Mullins v. Sunshine State Service Corp., 540 So. 2d 222, 223 (Fla. 5th DCA 1989)).

Here, the undisputed facts demonstrate that Plaintiff and Naborne executed and entered 

into the Guaranty, wherein Naborne unconditionally guaranteed the obligations of Exotic V’s 

under the Subscription Agreement. See Compl., ¶ 27, Exhibit A. Although the Guaranty was

incorporated within the Subscription Agreement, the Guaranty was set-out and executed with its 

own independent signature. See Compl., Exhibit A. The language of the Guaranty is clear and 

unambiguous, providing, in part, as follows: 

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The undersigned unconditionally personally guarantees to Venus 

Concept that he/she will make all payments and meet all obligations 

required under this Agreement. The undersigned especially consents 

to the jurisdiction of the court set out in the Terms and Conditions 

of this agreement. 

Id. 

Therefore, pursuant to the language of the Guaranty, Naborne guaranteed to Plaintiff the 

prompt and full payment – and not merely the collection— of all of Exotic V’s obligations to 

Plaintiff. See Id. Though Plaintiff has pursued this litigation against both Exotic V’s and Naborne,

the Guaranty is to remain enforceable against Naborne without the need for Plaintiff to make any 

additional efforts to collect the obligations from Exotic V’s. 

The undisputed facts in Plaintiff’s Complaint establish that Naborne breached the terms of 

the Guaranty by failing to perform her obligations thereunder after Exotic V’s defaulted on the 

terms of the Subscription Agreement. See Compl., ¶ 28. Plaintiff also attached a copy of the 

Guaranty included within the Subscription Agreement to the Complaint for the Court’s review. 

See Compl., Exhibit A. As such, the evidence and the well-pleaded allegations in the Complaint 

state a claim for breach of guaranty against Naborne, and Plaintiff is entitled to Final Default 

Judgment on Count II of its Complaint. 

C. PLAINTIFF IS ENTITLED TO JUDGMENT ON ITS CLAIM FOR UNJUST 

ENRICHMENT (COUNT III) IN THE ALTERNATIVE. 

As a general principle, a plaintiff cannot pursue an implied contract theory, such as unjust 

enrichment or quantum meruit, if an express contract exists. See Fulton v. Brancato, 189 So. 3d 

967, 969 (Fla. 4th DCA 2016) (stating that a plaintiff cannot pursue unjust enrichment or quantum 

meruit “if an express contract exists”). However, pursuant to Fed. R. Civ. P. 8, Plaintiff may plead 

alternative grounds for relief, which it has done here. Fed. R. Civ. P. 8(a)(3). To successfully 

prevail on a claim for unjust enrichment a plaintiff must prove that: (1) the plaintiff has conferred 

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a benefit on the defendant, who has knowledge thereof; (2) the defendant has voluntarily accepted 

and retained the benefit conferred; and (3) the circumstances are such that it would be inequitable 

for the defendant to retain the benefit without paying the value thereof to the plaintiff. 

Here, Plaintiff states in its Complaint that it “conferred to the appreciation of the 

Defendants certain benefits in the form of highly advanced, sophisticated, and costly medical 

aesthetic equipment, devices, and supplies.” Compl.¶34. Plaintiff further states that “Defendants 

accepted and retained said benefits under circumstances which make it inequitable for them to 

have retained same without paying the value of the benefits received.” Id. at ¶ 35. Therefore, even 

if the Court finds that Plaintiff has not successfully stated a claim of breach of contract, Plaintiff

still successfully states a substantive cause of action through its claim for unjust enrichment. As 

such, there is sufficient basis in the pleadings for the relief sought, and Plaintiff is entitled to Final 

Default Judgment on Count III of its Complaint if the Court denies Count I and Count II. 

D. PLAINTIFF IS ENTITLED TO JUDGMENT ON ITS CLAIM FOR 

ACCOUNT STATED (COUNT IV).

Plaintiff has adequately established Defendants’ liability for account stated (Count IV). To 

properly allege a cause of action for account stated, a Plaintiff must allege ultimate facts to support 

the parties’ agreement that a certain balance is correct and due, and that there was an express or 

implicit promise to pay this balance. FDIC v. Brodie, 602 So. 2d 1358, 1361 (Fla. 3d DCA 1992) 

(quoting Merrill-Stevens Dry Dock Co. v. Corniche Express, 400 So. 2d 1286, 1286 (Fla. 3d DCA 

1981)). “A plaintiff may prove a prima facie case for account stated by proffering evidence that 

the account was rendered under circumstances which raise a presumption of assent.” Supermedia 

LLC v. Pre Enters., LLC, No. 8:10-cv-000647-T-30TGW, 2010 U.S. Dist. LEXIS 83307, at *7 

(M.D. Fla. July 8, 2010). The practice of periodic billings for certain amounts in the reasonable 

course of business, when no objection is made to the amount of the bill in a reasonable period of 

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time, may give rise to such a presumption. Id. at *7; see also F.D.I.C. v. Brodie, 602 So. 2d 1358, 

1361 (Fla. 3d DCA 1992).

Plaintiff’s Complaint establishes that the parties entered into and executed the Subscription 

Agreement and Guaranty on December 18, 2019. See Compl., ¶ 7. Plaintiff alleges that 

Defendants failed to make all of the required payments due and owing beginning on December 31, 

2019 for the Subscription Agreement. See Compl. ¶ 43. Plaintiff’s Complaint and exhibits attached 

thereto demonstrate that Plaintiff continued to send periodic invoices. See Compl., Exhibits C & 

D. Defendants did not object to the invoices and they remain unpaid. See generally, Compl. The 

foregoing is sufficient to state a claim for account stated, and, therefore, Plaintiff should be granted 

Final Default Judgment on Count IV of its Complaint. 

IV. DAMAGES

In addition to entering default judgment on liability, a court must determine the amount of

damages to be awarded. See Holtz, 2013 WL 12141515, at *2. The burden is on the plaintiff to

prove the amount of damages owed. Varela v. Innovating Wiring Sols., LLC, No. 6:07-cv-165-

Orl-28KRS, 2009 WL 1795044, at *4 (M.D. Fla. June 22, 2009). “Affidavits based on personal 

knowledge can be sufficient evidence to establish damages.” Holtz, 2013 WL 1214515, at *2. 

Here, pursuant to the terms of the Subscription Agreement, Plaintiff seeks to recover the total 

amount of the remaining value of the Subscription Agreement, plus interest due on all amounts 

past due at a rate of 18% which has accrued from the dates of Default until payment in full. See 

Compl., ¶ 12. 

Both the Subscription Agreement and Plaintiff’s Declaration of Damages, attached hereto 

as Exhibit B, demonstrate that, as of June 2, 2023, Defendants owe Plaintiff $119,634.78 under 

the Subscription Agreement, consisting of the unpaid principal and accrued default interest. See

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Exhibit B. Plaintiff is also entitled to per diem interest of $50.59 until entry of final judgment. See

Id.

Lastly, pursuant to Section 15(iii) of the Subscription Agreement, Plaintiff is also entitled 

to collect costs and attorneys’ fees. See Compl.,¶ 13, Exhibit A, § 15(iii). The total amount of 

attorneys’ fees incurred by Plaintiff in this matter as of June 2, 2023, is $11,872.00. See Declaration 

of Attorneys’ Fees and Costs attached hereto as Exhibit C. The total amount of costs incurred by 

Plaintiff in this matter as of June 2, 2023, is $5,916.84. See Id.

Therefore, based upon the record, Plaintiff is entitled to Default Final Judgment against 

Defendants, jointly and severally, for damages in the total amount of $137,423.62. Plaintiff is also 

entitled to per diem interest of $50.59 until entry of final judgment and additional attorneys’ fees 

and costs.

CONCLUSION

WHEREFORE, given these well-pled allegations, the declarations attached hereto, and 

the failure of Defendants to timely answer or defend the instant lawsuit, Plaintiff respectfully 

requests this Honorable Court enter a Default Final Judgment against Defendants, jointly and 

severally, and award Plaintiff damages in the total amount of $137,423.62, plus per diem interest 

of $50.59 until entry of final judgment and additional attorneys’ fees and costs.1

Dated: June 2, 2023 Respectfully submitted,

LEWIS BRISBOIS BISGAARD & SMITH LLP

Attorneys for Plaintiff

110 SE 6th Street, Suite 2600

Fort Lauderdale, Florida 33301

Tel.: (954) 728-1280

Fax: (954) 678-4090

Vincent.Alexander@lewisbrisbois.com

1 A proposed order granting this Motion is attached hereto as Exhibit D.

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By: /s/ Vincent F. Alexander

Vincent F. Alexander

Fla. Bar No. 68114

CERTIFICATE OF SERVICE

I CERTIFY that on June 2, 2023, I filed a true and correct copy of the foregoing with the 

Clerk of the Court using the CM/ECF system. I also certify that a true and correct copy of the 

foregoing document is being served this day by (i) electronic mail on all counsel of record or pro 

se parties authorized to receive service in this case by transmission of Notices of Electronic Filing 

generated by CM/ECF; and (ii) U.S. First Class Mail on the following non-CM/ECF participants: 

Exotic V’s Beauty Bar and Spa whose address is 2412 W Via Camille, Montebello, CA 90640,

and Victoria Naborne whose address is 2412 W Via Camille, Montebello, CA 90640.

By: /s/ Vincent F. Alexander

Vincent F. Alexander

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