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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EVERGREEN NATIONAL INDEMNITY

COMPANY, Case No. 09-12941

Plaintiff, HON. SEAN F. COX

United States District Judge

v. 

GIBRALTER LAND COMPANY, et al.,

Defendant.

___________________________________/

OPINION & ORDER GRANTING PLAINTIFF’S 

MOTIONS FOR ENTRY OF DEFAULT JUDGMENT [Doc Nos. 22-26, 31]

Plaintiff Evergreen National Indemnity Company (“Evergreen”) filed this diversity

breach of contract action on July 24, 2009, alleging that Defendants Gibralter Land Company,

DCS, Ltd., Kent Holdings, LLC, and Dunham Partners, LLC (“the Corporate Entities”), as well

as Matthew and Robyn Wilkinson (“the Wilkinsons”), failed to fully indemnify Evergreen for

monies paid to the Michigan Department of Environmental Quality (“MDEQ”) pursuant to a

performance bond Evergreen issued on behalf of the Defendants. The matter is before the Court

on Evergreen’s Motions for Entry of Default Judgment [Doc. Nos. 22-26, 31], a hearing upon

which was held before the Court on January 14, 2010. For the reasons below, the Court

GRANTS Evergreen’s motions [Doc. Nos. 22-26, 31]. 

BACKGROUND

Plaintiff Evergreen is an Ohio Corporation with its principal place of business in

Mayfield Heights, Ohio, and is engaged in the surety bond business. [Pl.’s Complaint, Doc. No.

1, ¶1]. The Corporate Entities are all either Michigan corporations or Michigan limited liability

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companies, with their principal places of business in Trenton, Michigan. Id. at ¶¶2-5. The

Wilkinsons are both Michigan citizens, residing in Gross Isle, Michigan, Id. at ¶¶6-7. 

On or about October 31, 2000, Evergreen issued a surety bond for a Solid Waste Disposal

Area - Landfill No. 202185 (“the Bond”) in the penal sum of $1,000,000.00 to the MDEQ on

behalf of defendant Gibralter Land Company. Id. at ¶12. Thereafter, on March 8, 2006, the

MDEQ lowered the penal amount on the Bond to $435,939.00. Id. The Bond was issued in

relation to the Countrywide Landfill, located at 15701 Vreeland Rd., Gibralter, Michigan (“the

Landfill”), which is run, maintained and operated by Gibralter Land Company. Id. at ¶13. 

On or about October 8, 2001, the Corporate Entities and the Wilkinsons executed a

general indemnity agreement (“the Agreement”) which provided that the Defendants would

indemnify and hold Evergreen harmless for losses incurred in connection with the Bond issued

on behalf of Gibralter. A copy of the Agreement is attached to Evergreen’s Complaint, [See

Doc. No. 1, Ex. B], and is signed by each of the Corporate Entities and by the Wilkinsons in

their individual capacities. Id. 

On or about June 4, 2009, the MDEQ delivered to Evergreen a claim for $435,939.00, the

full amount of the Bond. [Pl.’s Complaint, Doc. No. 1,¶16]. After being given notice of the

claim by Evergreen, the Defendants remitted $255,902.36 to Evergreen as partial payment

pursuant to their indemnity obligations under the Agreement. Id. at ¶18. On July 15, 2009,

Evergreen tendered payment for the full amount of $435,939.00 to the MDEQ. Id. at ¶19. To

date, the Defendants have not tendered the outstanding $180,036.64 owed to Evergreen pursuant

to the Agreement. Id. at ¶20. 

Evergreen commenced this action on July 24, 2009, seeking indemnification from each of

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the Corporate Entities and from both of the Wilkinsons, jointly and severally. Specifically,

Evergreen’s prayer for relief requests: 1) judgment in the amount of $180,036.64; plus 2) preand post-judgment interest; and 3) costs and attorney fees pursuant to Article II, Section A,

subpart 10 of the Agreement. Id. at p.8. 

The Corporate Entities were served with process in this action on July 28, 2009. [See

Doc. Nos. 4-7]. Matthew and Robyn Wilkinson were each served with process in this action on

September 12, 2009. [See Doc. Nos. 16, 17]. After the time for each of the Defendants to answer

Evergreen’s Complaint had expired, Evergreen secured clerk’s entries of default for each of the

Defendants. [See Doc. Nos. 15, 19, 30]. 

Upon securing clerk’s entries of default, Evergreen filed the instant motions for default

judgment [Doc. Nos. 22-26, 31]. In each of those motions, Evergreen attaches affidavits and

supporting billing information that evidences attorney fees and costs incurred by Evergreen in

the amount of $9,350.37. [See Affidavits of Timothy J. Jordan and Michael J. Connick, Ex. 2 to

Doc. Nos. 22-26, 31]. Evergreen seeks a default judgment against each of the Defendants,

jointly and severally, for $180,036.64 in damages, plus $9,350.37 in costs and attorney fees, for

a total of $189,387.01. 

The Court held a hearing on these motions on January 14, 2010. Though counsel

appeared on behalf of the Plaintiff, no one appeared on behalf of any of the Defendants. 

ANALYSIS

“Once a default is entered against a defendant, that party is deemed to have admitted all

of the well pleaded allegations in the Complaint.” Ford Motor Co. v. Cross, 441 F.Supp.2d 837,

846 (E.D. Mich. 2006). Although liability is no longer an issue once default has been entered,

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the plaintiff must still prove the extent of its alleged damages. See, e.g., Antione v. Atlas Turner,

Inc., 66 F.3d 105, 110 (6th Cir. 1995). 

Rule 54 of the Federal Rules of Civil Procedure provides that “[a] default judgment must

not differ in kind from, or exceed in amount, what is demanded in the pleadings.” FED. R. CIV.

P. 54(c). Evergreen’s Complaint requests damages in the amount of $180,036.64, plus costs and

attorney fees per the Agreement. [See Pl.’s Complaint, Doc. No. 1, p.8]. Thus, it does not appear

that Evergreen is seeking damages in this motion that differ from those asserted in the complaint. 

 Rule 55, which governs default judgments, provides in pertinent part: 

The court may conduct hearings or make referrals - preserving any federal

statutory right to a jury trial - when, to enter or effectuate judgment, 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. 

FED. R. CIV. P. 55(b)(2). Accordingly, though this Court has discretion to order an evidentiary

hearing to determine the amount of damages properly owed to Evergreen, the Court finds that 

Evergreen’s filings are sufficient to allow the Court to properly enter judgment in its favor. 

The following is a summary of the various categories of damages sought by Evergreen in

these motions, as well as an evaluation of the evidence presented in support of each request. 

I. Damages Under Contractual Indemnity Theory

As damages as a result of the Defendants’ alleged breach of contractual indemnity,

Evergreen requests a total of $180,036.64. A copy of the Agreement was provided by

Evergreen [See Pl.’s Complaint, Doc. No. 1, Ex. B], whereby the Defendants agreed “. . .[t]o

exonerate, save harmless, indemnify, and keep indemnified [Evergreen] from any and all loss

whatsoever. . . for which [Evergreen] pays or incurs of for which [Evergreen] becomes liable. . .

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.” Id. at Art. II, § A. From this information, uncontested by the Defendants for purposes of this

hearing, it is evident that the Defendants agreed to indemnify Evergreen for any and all losses

incurred by Evergreen related to their issuance of the Bond. It is also uncontested that Evergreen

became indebted to the MDEQ in the amount of $435,939.00, and tendered payment to the

MDEQ in that amount. Finally, it is also uncontested that the Defendants only remitted

$255,902.36 to Evergreen in partial payment of their obligations under the Agreement.

The Court therefore ORDERS damages under Evergreen’s breach of contractual

indemnity theory in the amount of $180,036.64. 

 

II. Attorney Fees Under the Agreement

Subsection (10) of Article III, § A of the Agreement entitles Evergreen to costs and

attorney fees associated with recoupment of any loss suffered by Evergreen as a result of its

issuance of the Bond. Evergreen seeks an award of costs and attorney fees totaling $9,350.37. 

In support of its request for attorney fees, Evergreen attaches the Affidavits of Timothy J.

Jordan and Michael J. Connick [See Ex. 2 to Doc. Nos. 22-26, 31]. Each attorney has also

included an itemized breakdown of their time expended on this matter.

The Court grants Evergreen the full amount of attorney fees requested. Furthermore, the

costs associated with this suit speak for themselves. Therefore, the Court orders an award

totaling $9,350.37 in costs and attorney fees. 

CONCLUSION 

For the reasons explained above, the Court GRANT Evergreen’s Motions for Entry of

Default Judgment [Doc. Nos. 22-26, 31]. Plaintiff is ORDERED to electronically file a

proposed judgment for entry by the Court. 

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IT IS SO ORDERED.

s/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: January 20, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

January 20, 2010, by electronic and/or ordinary mail.

s/Jennifer Hernandez 

Case Manager

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