United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2186

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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* [UNPUBLISHED]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. *

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 Submitted: July 3, 1997

 Filed: July 7, 1997

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Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

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PER CURIAM.
The HONORABLE D. BROOK BARTLETT, Chief Judge, United States

1

District Court for the Western District of Missouri.

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Phillip Binns appeals 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 alleging state law battery and a violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-2000e-17.

Although Binns correctly argues that Holman could not hold him liable in his

individual capacity under Title VII following the court's dismissal of the Union

defendants, 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

jurisdiction 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 judgment

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 by

adequate foundation. We also conclude that--contrary to Binns's assertions on appeal--

the district court was not required to hold an evidentiary hearing before assessing the

amount of out-of-pocket medical expenses, as they were capable of ascertainment from

definite 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 evidentiary hearing if necessary

to determine amount of damages).

We further conclude the district court properly assessed a reasonable amount of

damages for mental suffering without specific proof of Holman's anguish and 
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humiliation. See K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. 1996) (en banc)

(offensive touching of sexual nature is battery; damages for mental suffering are

recoverable for battery); Prange v. Prange, 755 S.W.2d 581, 592 (Mo. Ct. App. 1987)

(no fixed measure or standard available to trier of fact in determining damages for pain

and suffering; in case involving assault and battery, 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 correctly argues, however, that attorney's fees are not generally

recoverable in Missouri in tort actions. See Rook v. John F. Oliver Trucking Co., 505

S.W.2d 157, 161 (Mo. Ct. App. 1973); see also Phil Crowley Steel Corp. v. Sharon

Steel Corp., 702 F.2d 719, 721 (8th Cir. 1983).

Accordingly, 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.