1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

ARISTOCLES ENTERPRISES, LLC 

d/b/a THE PLATO GROUP,

Plaintiff,

v.

KEU, INC.,

Defendant.

§

§

§

§

§

§

§

§

§

§

§

Case No. 6:23-cv-262-JDK

MEMORANDUM OPINION AND ORDER GRANTING 

MOTION FOR DEFAULT JUDGMENT

This is a breach of contract case. Plaintiff Aristocles Enterprises, LLC d/b/a 

The Plato Group (“Plato”) entered into a contract with Defendant KEU, Inc. (“KEU”)

for the provision of Plato’s consulting services.1 Docket No. 1 ¶ 8. KEU failed and 

refused to pay the amount due pursuant to the contract. Id. ¶ 14. KEU has not 

answered or otherwise appeared in the time allowed under Federal Rule of Civil 

Procedure 12(a), and the Clerk has entered default. Docket No. 8. Plato now moves

for default judgment, seeking damages, attorneys’ fees, prejudgment and postjudgment interest, and costs. Docket No. 9 at 3–6. 

As explained below, the Court GRANTS the motion. 

1 Because KEU has not appeared, filed a responsive pleading, or responded to the motion for default 

judgment, the Court accepts as true Plato’s well-pleaded facts. See Nishimatsu Constr. Co. v. 

Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 1 of 13 PageID #: 115
2

I.

Plato provides consulting services related to construction, military, and 

government procurement. Docket No. 1 ¶ 7. On February 18, 2020, Plato and KEU 

contracted for Plato to provide consulting services to KEU. Id. ¶ 8, see also Docket 

No. 9, Ex. 1 at 4. On January 28, 2022, Plato and KEU executed a task order 

pursuant to their contract. Docket No. 1 ¶ 9; Docket No. 9, Ex. 1 at 5. Plato provided 

and KEU accepted the consulting services. Docket No. 1 ¶¶ 9, 12; Docket No. 9, Ex. 

2. KEU represented that it would promptly pay Plato in full for the services. Docket 

No. 1 ¶ 13. Plato thereafter invoiced KEU $94,273.75 for the consulting services 

consistent with the terms of their agreement. Id. ¶ 14; id., Ex. B. Plato also 

demanded payment, but KEU failed and refused to pay. Id. ¶ 14. KEU continues to 

refuse to pay the amount due. Id.

On May 17, 2023, Plato filed this lawsuit, claiming breach of contract, suit on 

sworn account, violations of the Texas Prompt Pay Act, quantum meruit, and unjust 

enrichment. Docket No. 1. On June 13, 2023, Plato properly served summons and 

the complaint through the Texas Secretary of State, and later filed the executed 

return of service. Docket Nos. 3, 6. To date, KEU has not appeared, answered, or 

otherwise responded to the complaint. On September 12, 2023, Plato filed a request 

for Clerk’s Entry of Default against KEU, which the Clerk entered on the same day 

pursuant to Federal Rule of Civil Procedure 55(a). Docket Nos. 7, 8.

Plato now seeks default judgment under Rule 55(b)(2). Docket No. 9. Plato 

requests the Court enter default judgment and award Plato (1) damages of $94,273.75 

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 2 of 13 PageID #: 116
3

without a hearing; (2) attorneys’ fees of $6,105 pursuant to Section 38.001 of the 

Texas Civil Practice and Remedies Code, (3) prejudgment interest, (4) post-judgment 

interest, and (5) costs of $457. Id. at 3–6. KEU has not filed a response.

II.

The Fifth Circuit has adopted a three-step process to obtain a default 

judgment. See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). First, a 

default occurs when a party “has failed to plead or otherwise defend” against an 

action. Fed. R. Civ. P. 55(a). Second, an entry of default must be entered by the Clerk 

when the default is shown “by affidavit or otherwise.” Id.; N.Y. Life, 84 F.3d at 141. 

And third, a party may apply to the court for a default judgment after an entry of 

default. Fed. R. Civ. P. 55(b); N.Y. Life, 84 F.3d at 141. Here, the Clerk filed an entry 

of default on September 12, 2023. Docket No. 8.

The Court must now determine whether default judgment is proper. N.Y.

Life, 84 F.3d at 141. “[T]he entry of default judgment is committed to the discretion 

of the district judge.” Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977). As the Fifth 

Circuit has explained, “[d]efault judgments are a drastic remedy, not favored by the 

Federal Rules and resorted to by courts only in extreme situations.” Sun Bank of 

Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989) (footnotes 

omitted). Thus, even if a defendant is “technically in default,” “[a] party is not entitled 

to a default judgment as a matter of right.” Ganther v. Ingle, 75 F.3d 207, 212 (5th 

Cir. 1996). When deciding whether to enter a default judgment, the Court considers

the following six factors: 

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 3 of 13 PageID #: 117
4

[W]hether material issues of fact are at issue, whether there has been 

substantial prejudice, whether the grounds for default are clearly 

established, whether the default was caused by a good faith mistake or 

excusable neglect, the harshness of a default judgment, and whether the 

court would think itself obliged to set aside the default on the 

defendant’s motion.

Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). The Court must also assess 

the merits of the claims and determine whether the plaintiff has stated a proper claim 

for relief. Nishimatsu, 515 F.2d at 1206.

III.

A. Default Judgment

1. Factors Governing Entrance of Default Judgment

Applying the six factors identified above, the Court concludes that a default 

judgment against KEU is appropriate.

First, no material facts are in dispute. KEU never answered or otherwise 

responded to Plato’s complaint. 

Second, KEU has prejudiced Plato by failing to appear or respond to the 

complaint or Plato’s motion for default judgment.

Third, Plato clearly establishes the grounds for default. On June 13, 2023, 

Plato properly served summons and the complaint through the Texas Secretary of 

State. Docket No. 3. Plato filed the executed return of service. Docket No. 6. To 

date, KEU has not appeared, answered, or otherwise responded to the complaint. On 

September 12, 2023, Plato filed a request for Clerk’s entry of default against KEU, 

Docket No. 7, which the Clerk entered, Docket No. 8. Further, the Court has 

jurisdiction in this case under 28 U.S.C. § 1332(a)(1). Docket No. 1 ¶¶ 2–4.

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 4 of 13 PageID #: 118
5

Fourth, no evidence establishes that a good faith mistake or excusable neglect

caused KEU’s default. See Prive Corp., 161 F.3d at 893. 

Fifth, default judgment would not be needlessly harsh. KEU has had ample 

time to file an answer or otherwise respond to the complaint and failed to do so. 

Sixth, the Court cannot find a reason to set aside the default judgment if KEU

filed a motion. Plato clearly established the grounds for default, and KEU did not 

cause its default by a good faith mistake or excusable neglect. See id. 

All factors support entering default judgment. Accordingly, default judgment 

is appropriate in this case. See, e.g., id.

2. Statement of Proper Claim for Relief

The Court also finds that Plato properly stated a claim for relief in its 

pleadings. Plato’s complaint includes five counts: breach of contract, suit on sworn 

account, violations of the Texas Prompt Pay Act, quantum meruit, and unjust 

enrichment. The Court considers each count in turn.

To state a breach of contract claim under Texas law, Plato must allege “(1) the 

existence of a valid contract; (2) performance or tendered performance by the plaintiff; 

(3) breach of contract by the defendant; and (4) damages sustained by the plaintiff as 

a result of the breach.” Conn Credit I, L.P. v. TF LoanCo III, LLC, 903 F.3d 493, 499–

500 (5th Cir. 2018) (quoting Smith Int’l, Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th 

Cir. 2007)). Similarly, to allege a sworn account under Texas law, Plato must state: 

“(1) there was a sale and delivery of the merchandise or performance of the services; 

(2) the amount of the account is just, that is, that the prices were charged in 

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 5 of 13 PageID #: 119
6

accordance with an agreement, or in the absence of an agreement, they are usual, 

customary, and reasonable prices for that merchandise or services; and (3) the 

amount is unpaid.” Noodlenet, LP v. Proctor & Gamble Distrib., LLC, 2008 

WL 11349984, at *2 (N.D. Tex. Nov. 11, 2008) (citing Adams v. H & H Meat Prods. 

Inc., 41 S.W.3d 762, 773 (Tex. App.—Corpus Christi 2001, no pet.)).

The Court finds that Plato has alleged both claims. According to Plato’s 

complaint and exhibits, Plato and KEU entered into a valid contract: Plato agreed to 

provide consulting services, and KEU agreed to pay for the consulting services. 

Docket No. 1 ¶ 8; id., Ex. A. Both parties signed the agreement. Id. Plato satisfied 

its obligation under the contract by providing consulting services. Id. ¶ 9; id., Ex. B.

Plato, moreover, submitted invoices for its services as provided under the contract. 

Id., Ex. C. KEU has not paid for the services. Id. ¶ 14. The amount of the account 

is in accordance with the agreement. Id. ¶ 13; id., Exs. A, B. Plato alleges harm 

through the contract damages of the unpaid invoices, attorneys’ fees, and court costs 

and fees. Id. ¶ 14. Plato has thus alleged the requisite elements to establish a breach 

of contract and suit on sworn account. See Conn Credit I, 903 F.3d at 499–500; 

Noodlenet, 2008 WL 11349984, at *2. Accordingly, a sufficient basis in the pleadings 

exists to enter a default judgment on the breach of contract and suit on sworn account 

claims. 

Because Plato is entitled to relief through its contract with KEU, Plato cannot 

recover through quantum meruit. See U.S. Quest Ltd. v. Kimmons, 228 F.3d 399, 406 

(5th Cir. 2000) (“In general under Texas law, a party seeking to recover for services 

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 6 of 13 PageID #: 120
7

rendered will only be able to recover under quantum meruit when there is no express 

contract between the parties.”). Similarly, Plato cannot recover through an unjust 

enrichment theory. See Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 685 

(Tex. 2000) (“The written contracts in this case foreclose any claims for unjust

enrichment.”).

Finally, Plato’s motion does not specify how a violation of the Texas Prompt 

Pay Act would affect the award of damages, attorneys’ fees, prejudgment and postjudgment interest, and costs related to the breach of contract and suit on sworn 

account claims. Accordingly, the Court will not consider whether Plato properly 

alleged a claim under the Texas Prompt Pay Act. See Altima Diag. Imaging Sols., 

Inc. v. JDIS Grp., LLC, 2020 WL 1666385, at *5 n.1 (N.D. Tex. Apr. 3, 2020).

B. Relief Sought

Plato seeks five types of relief: (1) actual damages; (2) attorneys’ fees (3) 

prejudgment interest, (4) post-judgment interest, and (5) costs. Docket No. 9 at 3–6. 

As explained below, there is sufficient evidence to support an award for the relief 

sought by Plato. However, the Court disagrees with Plato’s requested amount of 

attorneys’ fees.

1. Damages

Plato seeks $94.273.75 in actual damages for its breach of contract and suit on

sworn account claims. Docket No. 9 at 3. In support of this amount, Plato submits

the signed agreement between Plato and KEU, records detailing the charges related

to the services provided, and the invoices detailing the specific tasks performed and

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 7 of 13 PageID #: 121
8

amounts charged. Id., Exs. 1, 2-A, 2-B. Plato also attaches an affidavit from its

manager, Dale Robert Plato, which affirms that Plato provided services to KEU and

that KEU failed to pay the balance of $94,273.75. Id., Ex. 2.

For unliquidated contract damages, “[t]estimony of the total amount due under 

a written instrument is legally sufficient to support an award of that amount in 

a default judgment proceeding.” Sinkler v. Evergreen Valley Prods., LLC, 2023 

WL 6545419, at *5 (E.D. Tex. Sept. 13, 2023) (quoting Tex. Commerce Bank v. New, 3

S.W.3d 515, 517 (Tex. 1999)). “[A] trial court may rely on affidavits in proving 

unliquidated damages in default judgments; in fact it is error to not consider the 

affidavits.” Id. (quoting Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 811

(Tex. App.—Waco 2007, no pet.)). The attached records support Plato’s assertions.

See Docket No. 9, Exs. 1, 2-A, 2-B. Accordingly, the Court will award Plato actual

damages of $94,273.75. See Sinkler, 2023 WL 6545419, at *5.

2. Attorneys’ Fees

Plato requests that KEU pay its reasonable attorneys’ fees in the amount of

$6,105. Docket No. 9 at 4. In support of this claim, Plato attaches an affidavit from 

Plato’s counsel, who attested that his hourly rate “is in accordance with that 

customarily charged by attorneys with [his] skill and experience in cases of this 

nature in this geographical region.” Id., Ex. 3 ¶ 5. The affidavit also states that the 

amount represents a reasonable fee for “prosecuting this case and judgment in the 

trial court” and “services required to perform post-judgment discovery and to satisfy 

the judgment by writ of execution and other procedures.” Id., Ex. 3 ¶¶ 7–8. The 

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 8 of 13 PageID #: 122
9

affidavit, moreover, attests that the services rendered by Plato’s counsel were 

necessary and reasonable. Id., Ex. 3 ¶ 6. And, finally, Plato attached the invoices 

from its counsel reflecting the services rendered in this matter. Id., Ex. 3-A.

A party must meet two requirements to obtain an award of attorneys’ fees 

under Texas Civil Practice & Remedies Code § 38.001: (1) a party must prevail on a 

cause of action for which fees are recoverable, and (2) it must recover damages. Kona 

Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 614 (5th Cir. 2000) (citing Green 

Intern. Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997)). The Court must award fees if 

the prevailing party meets the above requirements. Id. (citing World Help v. Leisure 

Lifestyles, Inc., 977 S.W.2d 662, 683 (Tex. App.—Fort Worth 1998, pet. denied)). The 

Court has discretion to determine the proper fee amount. Id. (citing World Help, 977 

S.W.2d at 683).

Here, Plato is entitled to recover reasonable attorneys’ fees. As noted above, 

Plato has satisfied the requirements for a default judgment on its breach of contract 

and sworn account claims—both of which entitle the prevailing party to fees. See 

Tex. Civ. Prac. & Rem. Code § 38.001. The Court also awarded damages for Plato’s 

claims. See supra Section III.B.1. Plato thus satisfies both requirements to obtain 

an award of fees. See Kona Tech., 225 F.3d at 614. 

Once the Court concludes that a plaintiff is entitled to fees, it must use the 

lodestar method to determine the reasonable amount. See Migis v. Pearle Vision, 

Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). Under the lodestar method, the Court first 

“calculates a ‘lodestar’ fee by multiplying the reasonable number of hours expended 

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 9 of 13 PageID #: 123
10

on the case by the reasonable hourly rates for the participating lawyers.” Id. Second, 

the Court considers whether it should adjust the lodestar figure upwards or 

downwards based on twelve factors: 

(1) the time and labor required for the litigation; (2) the novelty and 

difficulty of the questions presented; (3) the skill required to perform the 

legal services properly; (4) the preclusion of other employment by the 

attorney due to acceptance of the case; (5) the customary fee; (6) whether 

the fee is fixed or contingent; (7) time limitations imposed by the client 

or the circumstances; (8) the amount involved and the result obtained; 

(9) the experience, reputation and ability of the attorneys; (10) the 

“undesirability” of the case; (11) the nature and length of the 

professional relationship with the client; and (12) awards in similar 

cases.

Id. (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–19 (5th 

Cir. 1974)). The party seeking fees carries the burden to show that the hourly rate 

and number of hours expended on the litigation was reasonable and necessary. See 

T-Mobile USA Inc. v. Shazia & Noushad Corp., 2009 WL 2003369, at *5 (N.D. Tex. 

July 10, 2009).

Plato’s counsel’s affidavit and invoices allow the Court to calculate a lodestar 

fee of $4,605 for completed work based on the provision of 5.1 hours of legal service 

by Eric J. Kolder at an hourly rate of $300.00, and the provision of 12.3 hours of legal 

service by Archer Ramey at an hourly rate of $250.00. See Docket No. 9, Ex. 3-A. 

These fees are reasonable based on the work performed in the case. See, e.g., Arrow 

Elecs., Inc. v. Entegra Techs., Inc., 2016 WL 8290124, at *3 (E.D. Tex. Feb. 8, 2016). 

Plato does not request a variation based on the Johnson factors.

However, Plato also requests an additional $1500 as a reasonable fee for initial 

collection efforts. Docket No. 9 at 5. The Court cannot include the $1500 into the 

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 10 of 13 PageID #: 124
11

lodestar fee because Plato does not base its fee on a projected number of hours or an 

hourly rate. See Migis, 135 F.3d at 1047. Further, the lodestar includes only the 

number of hours expended, not expected to be expended. See id. Plato provides no 

support for the reasonableness of this fee. 

After reviewing the evidence and considering the Johnson factors, the Court 

will award Plato $4,605 in attorneys’ fees.

3. Prejudgment Interest

“Prejudgment interest is compensation allowed by law as additional damages 

for lost use of the money due as damages during the lapse of time between the accrual 

of the claim and the date of judgment.” Kona Tech, 225 F.3d at 613 (citing Johnson 

& Higgins of Tex. Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998) (emphasis 

omitted)). In a breach of contract case where the contract does not specify the rate, 

“prejudgment interest is calculated based on the statutory rate for postjudgment 

interest provided in section 304.003 of the Texas Finance Code.” Sinkler, 2023 WL 

6545419, at *5. The Texas Consumer Credit Commissioner determines the postjudgment interest rate as set by the Board of Governors of the Federal Reserve 

System at “the prime rate as published . . . on the date of computation,” but the postjudgment interest rate cannot be less than five percent per year or greater than 

fifteen percent per year. See Tex. Fin. Code § 304.003. The Texas Office of Consumer 

Credit Commissioner published a post-judgment interest rate of 8.50% per annum. 

See Interest Rates, TEXAS OFFICE OF CONSUMER CREDIT COMMISSIONER,

http://occc.texas.gov/publications/interest-rates. “[P]rejudgment interest accrues on 

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 11 of 13 PageID #: 125
12

the amount of a judgment during the period beginning on the earlier of the 180th day 

after the date the defendant receives written notice of a claim or the date the suit is 

filed.” Tex. Fin. Code § 304.104. Plato shall recover prejudgment interest on its 

actual damages of $94,273.75 at the rate of 8.50%, which began to accrue on May 17, 

2023, the date that Plato filed this suit. Accordingly, the Court will award Plato

$4,434.74 for prejudgment interest.

4. Post-Judgment Interest

Section 1961 of Title 28 of the United States Code governs post-judgment 

interest. A prevailing party can recover post-judgment interest that accrues at the 

interest rate of “the weekly average 1-year constant maturity Treasury yield, as 

published by the Board of Governors of the Federal Reserve System, for the calendar 

week preceding the date of the judgment.” 28 U.S.C. § 1961(a). Plato shall recover 

post-judgment interest on all amounts awarded at the rate of 5.16% per annum, 

compounded annually from the date of judgment until judgment is paid in full. See

Fuchs v. Lifetime Doors, Inc., 939 F.2d 1275, 1280 (5th Cir. 1991); Selected Interest

Rate Instruments, Yields in percent per annum: Weekly, FEDERAL RESERVE ECONOMIC 

DATA, https://fred.stlouisfed.org/release/tables?rid=18&eid=290&od=#.

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 12 of 13 PageID #: 126
13

5. Costs

Plato also seeks costs related to filing this lawsuit, which total $457. The Court 

agrees and awards costs to Plato. See Fed. R. Civ. P. 54(d) (“[C]osts—other than 

attorney’s fees—should be allowed to the prevailing party.”).

IV.

For the reasons stated herein, the Court GRANTS Plato’s Motion for Default 

Judgment (Docket No. 9). The Court will enter judgment in accordance with this 

order.

So ORDERED and SIGNED this day of

___________________________________

JEREMY D. KERNODLE

UNITED STATES DISTRICT JUDGE 5th December, 2023.

Case 6:23-cv-00262-JDK Document 10 Filed 12/05/23 Page 13 of 13 PageID #: 127