UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-23713-BLOOM/Otazo-Reyes

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, 

Plaintiff, 

v. 

MITCHELL KENDALL, et al.,

Defendants. 

________________________________/ 

ORDER ON MOTION FOR DEFAULT JUDGMENT

THIS CAUSE is before the Court upon Plaintiff Travelers Casualty and Surety Company 

of America’s Motion for Final Default Judgment, ECF No. [67] (“Motion”). Defendant Robert 

Vole (“Vole”) did not file a Response. The Court has reviewed the Motion, the record in this case, 

the relevant case law, and is otherwise fully advised. For the reasons that follow, the Motion is 

denied. 

I. BACKGROUND

On November 11, 2022, Plaintiff initiated this declaratory action against Vole and twelve 

co-Defendants for the purpose of determining whether Plaintiff has a duty to indemnify Mitchell 

Kendall, Shayna Sirkin, Susan Shane, Elenore Cora Ross, Jack Loeb, Barney Rosenzweig, Gerald 

Silver, Mark Sinnreich, Millinda Sinnreich, Ronald Shane, and Nicole Kendall (“Underlying 

Defendants”) in a state court action captioned Robert Vole v. Susan Shane., et al., Case No. 2020-

003447-CA-01, brought by Vole. See ECF No. [1]. The Complaint clarifies that the Underlying 

Defendants are members of Bayside Village Condominium Association, Inc. to which Plaintiff 

issued a a WRAP+ Community Association Management Liability Coverage insurance policy, 

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Policy No. 049-LB-106729172 (“Policy”). On January 3, 2023, Plaintiff filed an Affidavit of 

Service indicating that substitute service on Vole was effectuated on December 22, 2022, 

triggering a January 12, 2023, response deadline. ECF No. [35]. Vole did not answer or otherwise 

respond to the Complaint. Plaintiff moved for Clerk’s Entry of Default as to Vole on January 27, 

2023. ECF No. [42]. On January 30, 2023, the Clerk entered a Default as to Vole. ECF No. [43]. 

Stipulations have been filed by Plaintiff and Defendants Mitchell Kendall, Shayna Sirkin, Susan 

Shane, Elenore Cora Ross, Jack Loeb, Barney Rosenzweig, Gerald Silver, Mark Sinnreich, 

Millinda Sinnreich, Ronald Shane, and Nicole Kendall that include an agreement to not contest 

coverage and a joint stipulation for dismissal. See ECF Nos. [13], [18]-[23], [25], [27], [28], [36], 

[62], and [66]. The remaining Defendant, Susan Silver, was voluntarily dismissed. ECF No. [46].

On May 26, 2023, Plaintiff filed the instant Motion seeking an entry of Final Default 

Judgment against Vole. ECF No. [67]. Therein, Plaintiff requests that the Court enter a Final 

Default Judgment against Vole and a declaration of no coverage under the Policy for the claims 

made by Vole in an underlying lawsuit against the co-Defendants in this case (the “Underlying 

Defendants”). Id. ¶ 12.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 55(b)(2) authorizes a court to enter default judgment 

against a defendant who fails to plead or otherwise defend. Fed. R. Civ. P. 55(b)(2). “[B]efore 

entering a default judgment for damages, the district court must ensure that the well-pleaded 

allegations in the complaint, which are taken as true due to the default, actually state a substantive 

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 F. App’x 860, 863 (11th Cir. 2007) (emphasis 

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in original). “[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) (citations omitted).

III. DISCUSSION

The allegations in Plaintiff’s Complaint, which are accepted as true as to Vole due to the

default, establish that Vole filed an underlying lawsuit against the Underlying Defendants, who 

were members or former members of the Bayside Village Condominium Association. ECF No. 

[1] ¶¶ 22, 24. Plaintiff issued the Policy to Bayside Village Condominium Association, Inc. for the 

Policy Period of May 1, 2019, to May 31, 2020. Id. ¶ 31. The Complaint further alleges that in the 

underlying state court litigation, Vole does not allege that any of the Underlying Defendants were 

operating within their capacities as current or former Board members when the alleged conduct 

occurred. Id. ¶ VI. As such, Plaintiff explains that because the Policy does not apply to the claims 

asserted by Vole in the Underlying Lawsuit, the Court should find that Plaintiff has no duty to 

indemnify the Underlying Defendants. Id. ¶ VIII. The Complaint, however, is totally devoid of 

any allegations against Vole. See generally id. 

“A federal court not only has the power but also the obligation at any time to inquire into 

jurisdiction whenever the possibility that jurisdiction does not exist arises.” Fitzgerald v. Seaboard 

Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985) (citations omitted). As such, a “district court 

may act sua sponte to address the issue of subject matter jurisdiction at any time.” Herskowitz v. 

Reid, 187 F. App’x 911, 912-13 (11th Cir. 2006). This is because federal courts are “empowered 

to hear only those cases within the judicial power of the United States as defined by Article III of 

the Constitution, and which have been entrusted to them by a jurisdictional grant authorized by 

Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor 

v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)) (internal quotation marks omitted); see 

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Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal courts are courts 

of limited jurisdiction.”). “[O]nce a federal court determines that it is without subject matter 

jurisdiction, the court is powerless to continue.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d at 

410 (alteration added).

Because there are no allegations against Vole in Plaintiff’s Complaint, there is no case or 

controversy between the remaining parties for the Court to adjudicate. See Bowen v. First Family 

Fin. Services, Inc., 233 F.3d 1331, 1339 (11th Cir. 2000) (“Under Article III of the United States 

Constitution, the subject matter jurisdiction of federal courts extends only to ‘cases or 

controversies.’”) As such, the Court lacks subject matter jurisdiction and is powerless to grant the 

requested relief.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Default 

Judgment, ECF No. [67], is DENIED. All other Defendants having been previously dismissed,

the Clerk of Court is directed to CLOSE this case. All deadlines and hearings are 

TERMINATED, and any pending motions are DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, on June 21, 2023.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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