UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

SELECTSUN GMBH , 

 Plaintiff, 

v. CAUSE NO.: 1:14-CV-215-TLS-SLC 

INTERNATIONAL NAUTIC LLC, 

 Defendant.

OPINION AND ORDER 

This matter is before the Court on the Plaintiff’s Motion for Entry of Final Judgment 

against International Nautic LLC [ECF No. 240], filed on January 11, 2019. For the reasons 

stated below, this Motion is granted in part and denied in part. 

BACKGROUND 

On February 19, 2014, the Plaintiff filed an Amended Complaint [ECF No. 3] against (1) 

International Nautic LLC and (2) Porter, Inc. d/b/a Thunderbird Products. In essence, the 

Plaintiff alleged that it suffered “substantial damages” because a boat it purchased from the 

Defendants was not CE compliant. Pl.’s Am. Compl. at ¶¶ 142–49. Based upon this, the Plaintiff 

raised the following claims: fraudulent misrepresentation (Count 1); negligent misrepresentation 

(Count 2); aiding and abetting (Count 3); civil conspiracy (Count 4); negligence (Count 5); 

breach of express contract (Count 6); breach of implied-in-fact contract (Count 7); breach of duty 

of good faith and fair dealing (Count 8); breach of express warranties (Count 9); breach of 

implied warranties (Count 10); violation of the Magnuson-Moss Warranty Act (Count 11); and 

unjust enrichment (Count 12). Id. ¶¶ 175–269.1 Regarding damages, the Plaintiff requested (1) 

1

 Notably, Counts 8, 9, 10, and 11 of the Amended Complaint do not directly allege misconduct by International 

Nautic LLC. Id. ¶¶ 233, 242, 253, 262. 
2 

$908,816.85 in compensatory damages, or in the alternative, rescission; (2) $2,726,450.55 in 

punitive damages; and (3) attorneys’ fees and costs. Id. p. 34. 

On April 22, 2015, Magistrate Judge Susan Collins issued a Report and Recommendation 

[ECF No. 130] in which she recommended that default judgment be entered against International 

Nautic LLC due to its failure to appear at several court hearings.2 Report & Recommendation, 

pp. 3–4, ECF No. 130. Judge Collins further recommended that International Nautic LLC’s 

Answers [ECF Nos. 15, 78] and Motion to Dismiss [ECF No. 80] be stricken. Id. Ultimately, the 

Honorable James T. Moody accepted these recommendations and struck International Nautic 

LLC’s Answers and Motion to Dismiss. Order, pp. 1–2, ECF No. 170. However, in order to 

avoid the possibility of inconsistent results, Judge Moody withheld “entry of a final judgment on 

the default until the conclusion of this litigation.” Id. at 2. 

On August 31, 2015, Porter filed a Cross-Motion for Summary Judgment [ECF No. 149]. 

On March 30, 2017, this Motion was granted in part and denied in part by Judge Moody. Op. & 

Order, p. 25, ECF No. 179. Namely, the Motion was granted as to Counts 1 through 5 of the 

Amended Complaint but denied as to Counts 6 through 12. Id. Shortly thereafter, the Clerk of 

Court reassigned this case to the undersigned as presiding judge. Order, ECF No. 180. 

In March 2018, the Plaintiff’s case against Porter proceeded to a bench trial. See ECF No. 

231. Following the trial, the Court entered judgment in favor of Porter. Op. & Order, p. 34, ECF 

No. 228. The Court also entered default judgment against International Nautic LLC. Id.

However, regarding damages to be assessed against International Nautic LLC, the Court found 

that it would only cost a few thousand dollars to make the boat CE compliant based upon the 

evidence presented at trial. Id. at 33. Namely, the Court found as follows: 

2

 The lengthy procedural history of this case is mentioned only to the extent necessary for the resolution of the 

Plaintiff’s Motion for Entry of Final Judgment. 
3 

“The fact that a default is entered does not automatically result in plaintiff 

recovering what was demended [sic] in the complaint.” 10A Fed. Prac. & Proc. Civ. 

§ 2688.1 (4th Ed. 2018). “When a defendant is in default, the well pleaded factual 

allegations in the [c]omplaint, except those relating to damages, are taken as true.” 

Ford Motor Co. v. Cross, 441 F. Supp. 2d 837, 848 (E.D. Mich. 2006) (citations 

omitted). Additionally, Rule 55(b)(2) empowers the Court to hold hearings when it 

needs to “(A) conduct an accounting; (B) determine the amount of damages; (C) 

establish the truth of any allegation by evidence; or (D) investigate any other 

matter.” In this case, the Court has received and examined evidence over the course 

of the bench trial related to the damages, and will use those findings to inform the 

default judgment against International Nautic. 

Throughout the litigation and bench trial, SelectSun consistently 

highlighted the greatest flaw with the Boat: As delivered, it was not CE-certified. 

Porter does not dispute this, and all the evidence presented supports this conclusion 

as well. However, the Boat is usable. Schwaiger testified that he drove the Boat for 

an entire boating season. The primary problem he had with the Boat during the 

boating season involved an issue with the drive shaft, which the manufacturer 

(Ilmor) repaired. SelectSun did not provide sufficient evidence to tie the drive shaft 

issues to Porter or International Nautic, and instead focused its arguments around 

CE-certification. 

But the evidence presented at the bench trial, specifically the testimony of 

Wayne Porter and Augusto Villalon, demonstrates that the Boat can be CE-certified 

with a different exhaust system. The IMCI approved the Formula 420 FX 8 and its 

variants with an integral exhaust system for CE-certification in December 2013. 

Therefore, it appears that the Boat could have been CE-certified before this 

litigation began in January 2014, with a change to an integral exhaust system. While 

neither Wayne Porter nor Augusto Villalon testified to a precise amount that such 

a change would cost, both estimated that the cost of installing an exhaust system 

that complies with EU standards to be around a few thousand dollars. Potentially 

as few as $2,000. With the change in exhaust system, the Boat would be in 

compliance with EU standards, and could be both used and sold in Europe. 

Therefore, the Court will direct the Clerk to enter default against 

International Nautic. It will withhold the entry of a final default judgment until 

SelectSun provides evidence estimating the cost to replace the exhaust system to 

bring the Boat into compliance with EU standards. The Court will direct SelectSun 

to provide evidence of the same by October 31, 2018. If SelectSun does not provide 

evidence of its damages or file for an extension prior to the deadline, the Court will 

presume that SelectSun is waiving its pursuit of damages and will proceed 

accordingly. 

Id. at 33–34. Accordingly, the Court withheld entry of a final default judgment against 

International Nautic LLC until the Plaintiff demonstrated the cost to repair the boat so as to make 
4 

it CE compliant, setting a deadline of October 31, 2018, for Plaintiff to file evidence of its 

damages in accordance with the Court’s Opinion and Order. Id. at 34. 

 On October 31, 2018, the Plaintiff filed an affidavit from Hubertus Kettner in support of 

its claims for damages. See Kettner Aff., ECF No. 239. Kettner, an expert who testified at the 

trial, stated that the boat could not be made CE compliant and was a total loss. Id. ¶¶ 1, 3, 7. On 

January 11, 2019, the Plaintiff filed the instant Motion for Entry of Final Judgment [ECF No. 

240]. Notwithstanding this Court’s prior instructions, the Plaintiff continued to argue that “the 

cost of repair is inadequate to make Plaintiff whole.” Mot. for Entry of Final J., p. 6, ECF No. 

240. The Plaintiff argued at length that the boat could not be repaired and that the purchase price 

of the boat—which was $840,000.00—was the appropriate valuation of damages. Id. at 6–7. The 

Plaintiff also argued that his damages included the purchase of a custom boat lift and financing 

charges. Id. at 5. 

On March 28, 2019, the Court found “that the Plaintiff has demonstrated that damages in 

the amount of $68,816.65 for the boat lift and financing charges in the amount of $124,000.00 

are appropriate. The Plaintiff, however, has failed to demonstrate that damages for the full cost 

of the boat and attorney’s fees are appropriate.” Op. & Order, p. 6, ECF No. 241. Thus, the Court 

ordered the Plaintiff to file additional materials to support its claims for damages and court costs. 

Id. at 7. In pertinent part, the Court found as follows: 

First, there is a dispute between the Court’s findings that the boat could 

become CE-certified and the affidavit presented. In its Opinion and Order denying 

the Plaintiff’s claims against Defendant Porter, the Court found that Defendant’s 

expert Augusto Villalon, presented persuasive evidence that the “[b]oat can be CEcertified with a different exhaust system” and it appears that the boat “could have 

been CE-certified before this litigation began in January 2014, with a change to the 

integral exhaust system.” (Op. and Order at 33–34.) The affiant disputes this and 

the Plaintiff contends that the Court “should not rely on Mr. Villalon’s unreliable 

(uninformed and without foundation or basis) testimony in determining the Final 

Judgment against International Nautic.” (Pl.’s Mot. for Entry of Final J. at 7 n.2.) 
5 

Kettner’s affidavit notes that there was an attempt to fix the boat but it does not 

describe these efforts in detail or provide supporting documentary evidence. 

“Courts must ascertain with reasonable certainty the proper amount of damages 

based upon either an evidentiary hearing or definite figures contained in 

documentary evidence or a detailed affidavit.” Huegel v. Wal-Mart Stores, Inc., 

2016 WL 5929257, at *1 (N.D. Ind. Oct. 11, 2016) (emphasis added). Where an 

affidavit fails to provide sufficient detail and is not accompanied by additional 

documentation, such as here, an evidentiary hearing is appropriate. Id., at *2. As is, 

the Kettner affidavit alone “cannot provide the requisite reasonable certainty for a 

damages award without the necessity of a hearing.” e360 Insight v. The Spamhaus 

Project, 500 F.3d 594 603 (7th Cir. 2007). 

Finally, the Plaintiff requests attorneys’ fees and costs, but fails to provide 

a breakdown of those costs. The Plaintiff must provide a sufficiently itemized 

statement of the time spent on each task for which the Plaintiff seeks legal fees, 

along with the rate charged for each task, to demonstrate their reasonableness. 

Lauer v. Working Office Techs. Co., LLC, 2011 WL 4399818, at *2 (N.D. Ind. Sept. 

21, 2011). 

Id. at 6–7. As such, the Court withheld entry of final judgment. Id. at 7. The Court ordered the 

Plaintiff to file additional materials to support its request for damages and attorneys’ fees. Id. 

On May 3, 2019, the Plaintiff filed additional affidavits [ECF Nos. 242–44] in support of 

its Motion for Entry of Final Judgment. Kettner stated that the boat could not be made CE 

compliant and was economically worthless. Kettner Further Aff., p. 5, ECF No. 243. Erich 

Schwaiger, the operator of SelectSun, reiterated that the boat could not be made CE compliant 

for a few thousand dollars. Schwaiger Aff., p. 2, ECF No. 244. The Plaintiff’s Attorney, Martin 

F. Gusy, submitted a request for attorneys’ fees in the amount of $809,884.23. Decl. of Martin F. 

Gusy, p. 5, ECF No. 242. Attorney Gusy also attached various invoices in support of his request. 

See Invoices, ECF Nos. 242-3, 242-4. 

The Plaintiff also appealed this Court’s order which entered judgment in favor of Porter. 

See Notice of Appeal, ECF No. 235. On July 17, 2019, the Seventh Circuit affirmed this Court’s 

order. See Mandate, ECF No. 245. The Seventh Circuit concluded that the Plaintiff “did not meet 

its burden of proving damages to a reasonable certainty on either its breach of contract or 
6 

warranty claims.” SelectSun GmbH v. Porter, Inc., 928 F.3d 550, 556 (7th Cir. 2019). Notably, 

the Seventh Circuit held as follows: 

Not only did [the Plaintiff] decline to present affirmative evidence as to the cost of 

specific damage or the current value of the boat, it failed to rebut Porter’s evidence 

that the boat could be made CE compliant for only $2,000. While Indiana law 

affords some flexibility in proving damages, a plaintiff must come forward with an 

estimate rooted in evidence and demonstrated to a reasonable certainty. 

Id. at 555.

On August 21, 2019, this Court withheld entering final judgment and gave the 

Plaintiff leave of court to file supplemental briefing or new affidavits in light of the 

Seventh Circuit’s analysis. Order, ECF No. 246. The Plaintiff thereafter filed a Letter 

[ECF No. 249] in which it argued that the Seventh Circuit’s analysis should not affect 

this Court’s ruling as to International Nautic LLC. Letter, p. 1, ECF No. 249. This matter 

is fully briefed and ripe for ruling. 

ANALYSIS 

The Plaintiff requests (1) damages against International Nautic LLC in the 

amount of $1,032,816.85 and (2) attorneys’ fees in the amount of $809,884.23. The Court 

finds that the Plaintiff is entitled to $194,816.65 in compensatory damages and is not 

entitled to attorneys’ fees. 

A. Compensatory Damages 

The Court finds that the Plaintiff is entitled to $194,816.65 in compensatory 

damages. “There are two stages in a default proceeding: the establishment of the default, 

and the actual entry of a default judgment.” In re Catt, 368 F.3d 789, 793 (7th Cir. 2004). 
7 

“This two-step process is clearly outlined in Rule 55(a) (entry of default) and Rule 55(b) (default 

judgment) of the Federal Rules of Civil Procedure.” VLM Food Trading Int’l, Inc. v. Ill. Trading 

Co., 811 F.3d 247, 255 (7th Cir. 2016). 

Upon the entry of default, the plaintiff’s well-pleaded allegations in the complaint 

relating to liability are taken as true. Id. (quoting Dundee Cement Co. v. Howard Pipe & 

Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983)). However, “the allegations in the 

complaint with respect to the amount of the damages are not deemed true.” In re Catt, 368 F.3d 

at 793 (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 154–55 (2d Cir. 

1999)). As such, “the plaintiff still must establish his entitlement to the relief he seeks.” In re 

Catt, 368 F.3d at 793. The amount of damages sought must “naturally flow from the injuries 

pleaded.” Wehrs v. Wells, 688 F.3d 886, 893 (7th Cir. 2012) (quoting Greyhound Exhibitgroup, 

Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 159 (2d Cir. 1992)). Furthermore, conclusory 

affidavits are insufficient to meet the plaintiff’s burden of demonstrating reasonable certainty. 

e360 Insight v. The Spamhaus Project, 500 F.3d 594, 603 (7th Cir. 2007). “In this case, the Court 

has received and examined evidence over the course of the bench trial related to the damages, 

and will use those findings to inform the default judgment against International Nautic.” 

SelectSun GmbH v. Porter, Inc., 338 F. Supp. 3d 905, 925 (N.D. Ind. 2018); Order, p. 33, ECF 

No. 228; see also e360 Insight, 500 F.3d at 602.

The Court has previously found that “the evidence presented at the bench trial, 

specifically the testimony of Wayne Porter and Augusto Villalon, demonstrates that the Boat can 

be CE-certified with a different exhaust system.” Op. & Order, p. 33, ECF No. 228. Both Porter 

and Villalon “estimated that the cost of installing an exhaust system that complies with EU 

standards to be around a few thousand dollars. Potentially as few as $2,000.” Id. at 34. Based 
8 

upon this finding of fact, the Court then provided the Plaintiff with an opportunity to “provide 

evidence estimating the cost to replace the exhaust system to bring the Boat into compliance with 

EU standards.” Id. However, the Plaintiff submitted affidavits which essentially relitigated the 

issues presented at trial. For example, the Plaintiff submitted an affidavit from Hubertus Kettner 

which stated that it is “impossible to assess cost of repair for this Boat. I already opined at trial 

that this Boat cannot be made CE compliant and is a total loss.” Kettner Further Aff. ¶ 14, ECF 

No. 243. However, the Court has already considered the evidence presented at trial and rejected 

this argument. 

Based upon the evidence introduced at trial, the Court finds that the cost of making the 

boat CE complaint is $2,000. See also Porter, 928 F.3d at 555–56. This Court has previously 

found that the Plaintiff is entitled to $68,816.65 for the boat lift and $124,000.00 for financing 

charges. Op. & Order, p. 6, ECF No. 241. As such, the Plaintiff is entitled to a sum of 

$194,816.65 in compensatory damages. 

B. Attorneys’ Fees 

 The Plaintiff argues that he is entitled to attorneys’ fees because “[l]iability has 

been established against International Nautic for, inter alia, fraud and violations of the 

Magnuson-Moss Warranty Act.” Mot. for Entry of Final J., p. 7, ECF No. 240.3 Based 

upon documentary evidence submitted, the Plaintiff requests $809,884.23 in attorneys’ 

fees and court costs. For the reasons stated below, the Plaintiff’s request is denied. 

 “In all suits based on fraud or material misrepresentation, if the plaintiff recovers 

judgment in any amount, the plaintiff shall also be entitled to recover reasonable attorney 

3

 The Plaintiff does not set forth any other statutory or contractual authority for an award for attorneys’ fees. As 

such, the Court will only consider whether the Plaintiff is entitled to an award of attorneys’ fees under Indiana Code 

§ 26-1-2-721 and the Magnuson-Moss Warranty Act. Any other potential theory of recovery for attorneys’ fees is 

waived. See United States v. Jones, 224 F.3d 621, 626 (7th Cir. 2000). 
9 

fees which shall be entered by the court trying the suit as part of the judgment in that 

suit.” Ind. Code § 26-1-2-721 (emphasis added); see also Monarch Beverage Co., Inc. v. 

Tyfield Imps., Inc., 823 F.2d 1187, 1192 (7th Cir. 1987). In determining the 

reasonableness of a fee, “the trial court may consider such factors as the time, labor, and 

skill required to perform the legal service, the amount involved and the results obtained, 

the experience, reputation, and ability of the lawyer, and the fee customarily charged in 

the locality for similar legal services.” Longest ex rel. Longest v. Sledge, 992 N.E.2d 221, 

231 (Ind. Ct. App. 2013); see also Ind. Prof’l Conduct R. 1.5(a). 

 Based upon the record as a whole, the Court finds that it was objectively 

unreasonable to incur $809,884.23 in attorneys’ fees. As noted above, the boat could 

have been made CE compliant for a few thousand dollars. Furthermore, based upon the 

evidence presented at trial, the Court finds that the structural damage to the boat resulted 

from the Plaintiff’s negligence rather than any manufacturing defect. See Op. & Order, p. 

22, ECF No. 228 (“Villalon stated that, instead of Kettner’s explanations, the far more 

likely cause of the damage was that the Boat was driven hard and fast in rough waters, 

and the resulting force was strong enough to break interior brackets, crack gel coating, 

and damage other interior components.”). Accordingly, the Court finds that it was 

objectively unreasonable to incur hundreds of thousands of dollars in legal fees to pursue 

international litigation over a boat which (1) was damaged due to the Plaintiff’s 

negligence and (2) could have been made CE compliant for a few thousand dollars. Thus, 

based upon the amounts involved and the results obtained, the Court finds that the 

requested amount of fees is objectively unreasonable. 
10 

 Furthermore, International Nautic LLC’s role in this case was rather limited. 

Specifically, International Nautic LLC’s only filings in this Court were Answers to the 

Plaintiff’s Complaints [ECF Nos. 15, 78] and a Motion to Dismiss [ECF No. 80]. 

However, due to the International Nautic LLC’s failure to appear at several court 

hearings, default judgment was entered against International Nautic LLC and its filings 

were stricken. See Order, ECF No. 170. Following a bench trial at which judgment was 

entered in favor of Porter, the Plaintiff filed the instant Motion for Entry of Final 

Judgment against International Nautic LLC [ECF No. 240]. The Plaintiff has filed 

various affidavits and other supporting documents in support of this Motion. However, 

the Plaintiff makes no effort to separate its legal expenses as to International Nautic LLC 

from those incurred in pursuing its case against Porter. Instead, the Plaintiff seeks 

reimbursement for the entire cost of its litigation. However, this request is inappropriate 

because judgment was entered in favor of Porter. Furthermore, “[t]he party requesting an 

assessment of attorney fees bears the burden of proving an appropriate allocation of fees 

between issues for which attorney fees may be assessed and those for which they may 

not.” Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 838 (Ind. Ct. App. 2005). 

“While a perfect breakdown is neither realistic nor expected, a reasonable, good faith 

effort is anticipated.” SJS Refractory Co., LLC v. Empire Refractory Sales, Inc., 952 

N.E.2d 758, 767 (Ind. Ct. App. 2011). Because the Plaintiff has not attempted to identify 

the attorneys’ fees incurred in obtaining a judgment against International Nautic LLC as 

opposed to those incurred in pursuing its unsuccessful claims against Porter, the Plaintiff 

has failed to meet its burden to demonstrate that the fees requested are reasonable or 
11 

appropriate. See Miami Sand & Gravel, 825 N.E.2d at 838–39 (recognizing that a party 

must allocate attorneys’ fees to the appropriate defendant). 

 The Court also finds that the Plaintiff is not entitled to attorneys’ fees under the 

Magnuson-Moss Warranty Act. This Act is “a remedial statute designed to protect the 

purchasers of consumer goods from deceptive warranty practices.” Miller v. Willow 

Creek Homes, Inc., 249 F.3d 629, 630 (7th Cir. 2001). Under the Act, a successful 

plaintiff may be allowed to recover attorneys’ fees and other expenses. See 15 U.S.C. 

§ 2310(d)(2). In relevant part, the Act provides as follows: 

If a consumer finally prevails in any action brought under paragraph (1) of this 

subsection, he may be allowed by the court to recover as part of the judgment a sum 

equal to the aggregate amount of cost and expenses (including attorneys’ fees based 

on actual time expended) determined by the court to have been reasonably incurred 

by the plaintiff for or in connection with the commencement and prosecution of 

such action, unless the court in its discretion shall determine that such an award of 

attorneys’ fees would be inappropriate. 

Id. (emphasis added). An award of attorneys’ fees under the Act is a matter left to the 

sound discretion of the district court. Samuels v. Am. Motors Sales Corp., 969 F.2d 573, 

579 (7th Cir. 1992); see also Alba Conte, 3 Attorney Fee Awards § 23:1 (3d ed. 2019). 

 As noted above, the Court finds that it was objectively unreasonable for the 

Plaintiff to incur hundreds of thousands of dollars in legal fees over a boat which was 

damaged due to the Plaintiff’s negligence and could have been made CE compliant for a 

few thousand dollars. Therefore, for the reasons stated above, the Court finds that an 

award of attorneys’ fees under the Magnuson-Moss Warranty Act would be 

inappropriate. 
12 

CONCLUSION

For the reasons stated above, the Plaintiff’s Motion for Entry of Final Judgment 

[ECF No. 240] is GRANTED in part and DENIED in part. The Plaintiff is awarded 

compensatory damages in the amount of $194,816.65. The Plaintiff’s request for 

attorneys’ fees is denied. The Clerk of Court is DIRECTED to enter final judgment in 

favor of the Plaintiff and against International Nautic LLC. 

 SO ORDERED on March 10, 2020. 

 s/ Theresa L. Springmann 

 CHIEF JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT