United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2186

___________ Linda Holman, * * Appellee, * * v. * * National Postal Mail Handlers Union, * A division of Laborers' International * Appeal from the United States Union of North America, AFL-CIO; * District Court for the Local #297, National Postal Mail * Western District of Missouri. Handlers Union, * * [UNPUBLISHED] Defendants, * * Phillip W. Binns, * * Appellant. *

___________ Submitted: July 3, 1997 Filed: July 7, 1997

___________ Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

___________ PER CURIAM.Th e HONORABLE D. BROOK BARTLETT, Chief Judge, United State s 1 District Court for the Western District of Missouri. -2- Phillip Binns a

ppeals the district court's entry of default judgment against him, 1 and the court's award of damages and attorney's fees to plaintiff Linda Holman in her action allegi ng state law battery and a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. Althoug h Binns correctly argues that Holman could not hold him liable in hi s indivi dual capacity under Title VII following the court's dismissal of the Unio n defenda nts, see Smith v. St. Bernards Reg'l Med. Ctr. , 19 F.3d 1254, 1255 (8th Cir

. 1994) , we conclude it was within the district court's discretion to retain supplemental juris diction over Holman's battery claim against Binns. See 28 U.S.C. § 1367(a) , (c)(3); Baker v. Farmers Elec. Coop., Inc. , 94 F.3d 274, 283 (5th Cir. 1994).
We find no abuse of discretion in the district court's entry of default judgmen t here, given Binns's failure to answer the complaint or otherwise defend this action. See Fed. R . Civ. P. 55; Comiskey v. JFTJ Corp. , 989 F.2d 1007, 1009 (8th Cir. 1993 ) (standard of review).
We conclude the award of damages to Holman was proper and supported b y adequate foundation. We also conclude that--contrary to Binn s's assertions on appeal-- the d istrict court was not required to hold an evidentiary hearing before assessing the amount of out-of-pocket medical expenses, as they were capab le of ascertainment from d e finite figures in Holman's affidavit, and Binns did not contest the amounts set forth there. See Fed. R. Civ. P. 55(b)(2) (court may conduct evidentia ry hearing if necessary to determine amount of damages).
We further conclude the district cour t properly assessed a reasonable amount of damages for mental suffering without specific proof of Holman's anguish and-3-

humiliation. See K.G. v. R.T.R. , 918 S.W.2d 795, 799 (Mo. 1996) (en banc ) (o ffensive touching of sexual nature is battery; damages for mental suffering ar e recoverable for battery); Prange v. Prange , 755 S.W.2d 581, 592 (Mo. Ct. App. 1987) (no fixed measure or standard available to trie r of fact in determining damages for pain and suffering; in case involving assault and ba ttery, mental anguish and humiliation are proper elements of damages, as they are necessary and natural consequences of tort, and may be inferred from character of injuries even though not pleaded and without specific proof).
Binns co rrectly argues, however, that attorney's fees are not generall y recoverable in Missouri in tort actio ns. See Rook v. John F. Oliver Trucking Co. , 505 S.W.2 d 157, 161 (Mo. Ct. App. 1973); see also Phil Crowley Steel Corp. v. Sharo n Steel Corp. , 702 F.2d 719, 721 (8th Cir. 1983).
Acc ordingly, we affirm the district court's judgment in all respects, except that we vacate the award of attorney's fees. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.