1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BERKLEY REGIONAL INSURANCE :

COMPANY,

:

Plaintiff,

:

v. CA 14-00493-KD-C

:

TRADEMARK CONSTRUCTION,

INC., et al., :

Defendants. :

FINDINGS AND RECOMMNDATION TO GRANT PLAINTIFF’S MOTION FOR 

DEFAULT JUDGMENT AGAINST ALL DEFENDANTS1

This matter came before the Court upon Plaintiff Berkley Regional Insurance 

Company’s (“Berkley”) Motion for Default Judgment against Defendants Trademark 

Construction, Inc., Mill Creek Equipment Company, Inc., and Tomac Company, LLC 

(collectively, the “Defendants”), (doc. 14), and Berkley’s Memorandum in Support, 

(doc. 20). The Defendants, who have not appeared in this matter, failed to file a 

response to Berkley’s Motion for Default Judgment. For the reasons explained below, 

and after careful consideration of the filings and relevant law, it is recommended that

Berkley’s Motion for Default Judgment be GRANTED in favor of Berkley and against 

the Defendants, jointly and severally, for the sum of $478,021.03.2 

 1 This action was randomly assigned to the undersigned as a possible consent case pursuant to the practice 

of this Court and 28 U.S.C. § 636(c). (See General L.R. 73(c) (effective August 1, 2015) which codifies 

the Court’s practice and supersedes the previous standing order.) Because none of the defendants have 

appeared and are in default, the parties have not consented to having the issues in this action resolved by a 

magistrate judge. Accordingly, the Clerk is to reassign this action and refer this Report and 

Recommendation to the district judge.

2 A hearing pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure is not necessary. The allegations in 

the Complaint along with the exhibits attached to the motion for a default judgment and supplemental memorandum 

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I. BACKGROUND

Berkley filed its Complaint for Indemnity and Equitable Relief (the “Complaint”) 

against the Defendants seeking contractual and equitable indemnification for certain 

losses, costs and expenses sustained as a result of having issued certain surety bonds on 

behalf of Defendant Trademark Construction, Inc. (the “Principal”) and enforcing a 

General Agreement of Indemnity executed by, among others, the Defendants (the 

“Indemnity Agreement”). Berkley filed the Complaint against the Defendants on 

October 23, 2014. (Doc. 1.) The Defendants failed to file an Answer or otherwise appear 

in this lawsuit within the time limits set forth in the Federal Rules of Civil Procedures. 

The Clerk entered a Default against the Defendants on December 16, 2014. (Doc. 10.) 

Berkley has requested that judgment be entered in its favor against the Defendants, 

jointly and severally, in the amount of $478,021.03, which figure represents the losses, 

costs and expenses sustained by Berkley as a result of having issued certain surety 

bonds on behalf of the Principal and enforcing the Indemnity Agreement. In addition 

to its Motion for Default Judgment, Berkley has submitted supplemental briefing as 

further evidence of the fact and amount of the damages it seeks against the Defendants. 

(Doc. 20).

II. JURISDICTION AND VENUE

Berkley alleges jurisdiction based on diversity of citizenship pursuant to 28 

U.S.C. § 1332(a). The allegations are that Berkley is a citizen of Connecticut, the

defendants are citizens of Alabama and the amount in controversy exceeds $75,000.00. 

The citizenship allegations are accepted as true, having been presented by counsel for 

the plaintiff pursuant to Rule 11(b)(3) of the Federal Rules of Civil Procedure which 

 provide a sufficient basis to determine the sum certain sought by the Plaintiff. Securities and Exchange Commission 

v. Smyth, 420 F.3d 1225, 1231–32 & n. 13 (11th Cir.2005) (where “all essential evidence is already of record,” a 

hearing is generally not required).”

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provides that “[b]y presenting to the court a pleading ... an attorney ... certifies that to 

the best of the person's knowledge, information, and belief, formed after an inquiry 

reasonable under the circumstances ... the factual contentions have evidentiary 

support”. It is also clear that the amount in controversy clearly exceeds the threshold 

amount.

The Court has also considered the issue of whether personal jurisdiction over the 

defendants exists in this action. See, e.g., Hemispherx Biopharma, Inc. v. Johannesburg 

Consol. Investments, 553 F.3d 1351, 1360 (11th Cir.2008) (“Service of process is a 

jurisdictional requirement: a court lacks jurisdiction over the person of a defendant 

when that defendant has not been served.”) (Citation omitted). “The concept of 

personal jurisdiction comprises two distinct components: amenability to jurisdiction 

and service of process. Amenability to jurisdiction means that a defendant is within the 

substantive reach of a forum's jurisdiction under applicable law. Service of process is 

simply the physical means by which that jurisdiction is asserted.” Gray Cas. & Sur. Co. 

v. McConnell Contracting, LLC, No. CIV.A. 11-0184-KD-N, 2012 WL 1145186, at *1 (S.D. 

Ala. Apr. 5, 2012) (citation omitted).

Berkley alleges that the Principal is a citizen of Alabama and may be served 

through its Registered Agent, Tomas K. Stanley, in Mobile, Alabama; defendant Mill 

Creek Equipment Company, Inc. is a citizen Alabama and may be served via its 

Registered Agent, Larry T. McPherson, in Mobile, Alabama3; and defendant Tomac & 

Company, LLC is a limited liability company,4 with its principal place of business in 

Alabama and may be served via its Registered Agent, Thomas K. Stanley, in Mobile, 

 3 Thomas K. Stanley executed the Indemnity Agreement as President of Mill Creek Equipment Company, 

Inc. and received service of the Complaint as an officer of this corporation.

4 All Officers/Members of the LLC are alleged to be citizens of Alabama.

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Alabama. The Performance and Payment Bonds were issued by Berkley to bond 

construction projects to be performed for the University of South Alabama in Mobile 

County, Alabama (“Dining Facility Project”) and the Harrison County [Mississippi] 

Board of Spuervisors pertaining to the Governmental Complex & Library Project 

(“Library Project”). The General Agreement of Indemnity was executed by the 

defendants to indemnify Berkley in the event of non-performance of the Dining Facility 

Contract and the Library Contract. Therefore, all defendants are amenable to 

jurisdiction.

Defendants were served with the summons and complaint in November 2014

(docs. 5–7) in Mobile, Alabama. Additionally, Berkley has mailed a copy of the 

application for entry of default, and motion for default judgment to the defendants at 

their last known address (docs. 9 & 14, certificates of service). Therefore, defendants 

have been served with notice of this proceeding and notice of the motion for default 

judgment.

III. FINDINGS OF FACT

A. THE INDEMNITY AGREEMENT

The Defendants executed the Indemnity Agreement, dated September 19, 2006, 

in favor of Berkley as inducement for Berkley to issue surety bonds on behalf of the 

Principal. (Doc. 20, Exh. 1) Those surety bonds, which are described in greater detail 

below, shall be referred to collectively as the “Bonds.” Article 1.01 of the Indemnity 

Agreement obligates the Defendants, jointly and severally, to: 

[E]xonerate, hold harmless, indemnify, and keep indemnified [Berkley] 

from and against any and all liability arising from any cause of action, 

claim, cost, damage, debt, demand, expenditure, liability, loss, payment, 

obligation, or penalty of any kind whatsoever, including without 

limitation, interest costs court costs, costs to compromise or settle any 

claim, expert fees, investigative costs and the fees and expenses of 

attorneys, accountants and other professionals or service providers of 

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any nature whatsoever, whether or not alleged, asserted, awarded, 

contingent, incurred, potential, threatened, matured or unmatured, and 

shall reimburse [Berkley] for any payment by it, related to or by reason of: 

(i) this Agreement, a Contract or Bonds and/or [Berkley’s] procuring or 

enforcement of the same or the prosecution, investigation or defense of 

any Claim against or by [Berkley]; (ii) any loans, credits, advances or 

monies guaranteed, lent, advanced or extended by [Berkley] from time to 

time to or for the account of any [Indemnitor]; (iii) [Berkley] having 

accepted Collateral as security for the obligations of the [Indemnitors] to 

[Berkley] or the enforcement of [Berkley’s] interest therein; (iv) the 

occurrence of an Event of Default and any prosecution, investigation, 

defense or settlement of the same by [Berkley]; or (v) any action or 

inaction by [Berkley] or liability incurred or sustained by [Berkley] in 

reliance upon representations or statements made by Indemnitors or their 

attorneys and representatives regarding defenses available to an 

Indemnitor and/or [Berkley] to claims made against such Bonds (all of the 

foregoing referred to singly as an “Indemnified Claim” or an 

“Indemnified Expense” and collectively as an “Indemnified Claim or 

Expense”). The [Indemnitors] shall also pay to [Berkley] interest on all 

such payments, from the date thereof, at the maximum legal postjudgment rate permitted by New York law, compounded daily.

(Emphasis added). Article 1.01 of the Indemnity Agreement therefore requires the 

Defendants to, inter alia, indemnify Berkley with respect to all costs, damages, debts, 

demands, expenditures, liabilities, losses, payments, obligations or penalties of any kind 

whatsoever, including interest fees, court costs, costs of compromising or settling any 

claim, expert fees, investigative costs and the fees and expenses of attorneys, 

accountants and other professionals, sustained in relation to enforcing the Indemnity 

Agreement or as a result of having issued the Bonds. 

Article 1.02 of the Indemnity Agreement further provides, in pertinent part: 

To further protect, exonerate and save harmless [Berkley], Indemnitors 

shall pay over to [Berkley], its successors and assigns, all sums of money 

which [Berkley] shall pay or cause to be paid or may potentially be liable 

to pay related to or by reason of an Indemnified Claim; such payment to 

be made to [Berkley] as soon as [Berkley] notifies Indemnitor to deposit 

such funds with [Berkley], whether or not [Berkley] established or 

increased any reserve or shall have paid out such sum or any part thereof 

or not.... 

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Article 1.02 of the Indemnity Agreement obligates the Defendants to protect, exonerate 

and save harmless Berkley before Berkley even sustained any losses, costs and/or 

expenses in enforcing the Indemnity Agreement or as a result of having issued surety 

bonds on behalf of the Principal. 

Article 2.01 of the Indemnity Agreement further allows Berkley to determine 

whether any claim “shall or shall not be paid, compromised, settled, resisted, defended, 

prosecuted, tried or appealed.” Under Article 2.01 of the Indemnity Agreement, any 

such determination by Berkley, absent fraud, is binding on the Defendants. Finally, 

Article 2.01 of the Indemnity Agreement provides, in pertinent part, that:

An itemized statement of payments made by [Berkley] for any of the 

purposes specified herein, sworn to by an officer of [Berkley] or the copies 

of the checks or drafts for such payments, shall be prima facie evidence 

of the liability of the Indemnitors to reimburse [Berkley] such amounts 

with interest from the date of payment. 

(Emphasis added). The Indemnity Agreement establishes that an itemized statement of 

payments made by Berkley, for which it seeks indemnification from the Defendants, 

sworn to by an officer of Berkley, is prima facie evidence of the fact and amount of the 

Defendants’ liability to Berkley. Berkley submitted both forms of proof in support of its 

Motion for Default Judgment against the Defendants. 

B. THE BONDS

Berkley issued the Bonds on behalf of the Principal in reliance on the Indemnity 

Agreement. More specifically, the evidence submitted to the Court indicates that 

Berkley issued Performance Bond No. 0132441 (the “Dining Facility Performance 

Bond”) and Payment Bond No. 0132441 (the “Dining Facility Payment Bond”) 

(collectively, the “Dining Facility Bonds”) on behalf of the Principal in connection with 

its contract with the University of South Alabama (the “University”) to construct the 

USA New Dining Facility Project (the “Dining Facility Project”). The evidence further 

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indicates that Berkley issued Performance Bond No. 0132444 (the “Library Performance 

Bond”) and Payment Bond No. 0132444 (the “Library Payment Bond”) on behalf of the 

Principal in connection with its contract with the Harrison County Board of Supervisors 

(the “County”) pertaining to the Governmental Complex & Library Project (the 

“Library Project”). 

The Dining Facility Bonds and the Library Bonds, which have already been 

collectively defined as the “Bonds,” are the primary subject of Berkley’s Complaint and 

are the main source of losses, costs and expenses for which Berkley seeks 

reimbursement from the Defendants. The Principal defaulted with respect to its 

obligations under the Bonds, resulting in Berkley’s receipt of numerous claims from the 

Principal’s subcontractors and suppliers who furnished labor and materials to either or 

both of the Dining Facility Project and the Library Project (the “Bond Claims”). Berkley 

has submitted sufficient and valid evidence to the Court that it paid the sum of 

$710,198.09 under the Bonds in satisfaction of valid Bond Claims. 

C. DAMAGES

Berkley submitted an Affidavit of Ellen M. Cavallaro (doc. 14-1) in support of its 

Motion for Default Judgment setting forth the damages sought by Berkley (“Affidavit 

One”). Berkley also submitted a second Affidavit of Ellen M. Cavallaro (doc. 20-39) in 

support of its Supplemental Brief to the Motion for Default Judgment (“Affidavit 

Two”). The Affidavits establish that Ms. Cavallaro is an Assistant Vice President of 

Surety Claims at Berkley Surety Group, a W.R. Berkley Company and, in that capacity, 

possesses personal knowledge of the losses, costs and expenses sustained by Berkley for 

which it seeks reimbursement from the Defendants. Based on the contents of the 

Affidavits, Berkley’s damages can be broken down into three (3) categories: (1) sums 

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paid under the Bonds to satisfy valid Bond Claims; (2) attorneys’ fees and related costs; 

and (3) consulting fees and related costs. 

1. Losses Under the Bonds

Affidavit One contains an itemized chart of the payments Berkley made under 

the Bonds in satisfaction of valid Bond Claims. More specifically, Affidavit One 

identifies every subcontractor and supplier paid by Berkley, the amount paid and the

project in relation to which the payment was made. In Affidavit One, Ms. Cavallaro 

affirms that Berkley satisfied the valid Bond Claims in good faith and with the 

reasonable belief that said Bond Claims were due. Affidavit One therefore constitutes 

an “itemized statement of payments made by [Berkley]” under the Bonds in accordance 

with Article 2.01 of the Indemnity Agreement. In further compliance with Article 2.01 

of the Indemnity Agreement, Berkley also submitted to the Court copies of the checks 

transmitted to the claimants, which checks evidence actual payment and satisfaction of 

their Bond Claims. The Affidavits show that Berkley paid $710,198.09 to satisfy the 

following nine claims submitted under the Dining Facility Payment Bond and nine 

claims submitted under the Library Payment Bond: 

CLAIMANT AMOUNT

PAID

Johnson Controls, Inc. $24,805.00

Southeast Contractors $100,299.78

JPO Contractors, Inc. $293.94

Mobile Glass, LLC $3,700.14

Gulf Electric $159,681.59

Doyle Associates $22,000

National and Local Union

119 & 441, Various Funds

& Plans $96,849.69

Delta Flooring $5,783.16

Melvin Pierce Painting, Inc. $12,513.75

Construction Specialties, Inc. $8,946.00

MAS-CO Inc. $11,854.13

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Branch Electric $43,835.01

HDI $4,723.45

Compton Appliance, Inc. $88,597.75

Vulcan Interiors $86,395.56

Glass, Inc. $13,807.90

Melvin Pierce Painting, Inc. $25,317.00

Southwest Design & 

Landscaping

$794.24

Total $710,198.09

The Court therefore finds that the total amount Berkley paid in satisfaction of the 

valid Bond Claims was $710,198.09, as stated in the Affidavits submitted by Berkley. 

Berkley, supported by the Affidavits, has further shown that the damages 

incurred paying the valid Bond Claims must be offset back contract funds recovered 

from the University and the County on the Dining Facility Project and the Library 

Project, respectively. Affidavit Two shows that Berkley received $221,698.13 from the 

University in contract funds remaining on the Dining Facility Project and $119,787.36 

from the County in contract funds remaining on the Library Project. The recovery of 

these contract funds would offset the total loss incurred under the Bonds by the sum of 

$341,485.49. In light of the contract funds recovered by Berkley, the Court finds that 

Berkley sustained a net loss (exclusive fees, expenses and costs) under the Bonds in the 

sum of $368,712.60 in good faith and with the reasonable belief that all payments made 

to satisfy valid Bond Claims were due. 

2. Legal Fees

The Affidavits contain additional evidence showing that Berkley has paid the 

sum of $84,225.74 in legal fees in connection with its receipt, review, investigation and 

resolution of the Bond Claims and enforcing the Indemnity Agreement. Affidavit Two 

further breaks down Berkley’s payment of legal fees by invoice, including payee, 

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amount of payment and date of payment. Finally, Berkley submitted copies of the 

invoices for the legal services to the Court, under seal, to allow for judicial review. 

Affidavit Two clarifies that Berkley retained four law firms to provide legal services in 

connection with this matter. One law firm, Manier & Herod, P.C., served as the lead 

counsel for Berkley with respect to all matters involving the Principal, the Bonds and 

the Bond Claims. Berkley retained additional law firms to protect its interests after a 

number of subcontractors and suppliers filed lawsuits against Berkley in both Alabama 

and Mississippi in relation to their Bond Claims. Berkley also retained counsel to assist 

with the filing of this present lawsuit and the Complaint. 

Upon review of the Affidavits and the invoices submitted under seal, it is clear

that legal counsel assisted Berkley with reviewing, investigating, denying and/or 

resolving numerous Bond Claims, defending Berkley in relation to four lawsuits, filed 

in various jurisdictions, filed by the Bond claimants, procuring bonded contract funds 

held by the University and the County (which funds offset Berkley’s total losses, costs 

and expenses), making demands on the Defendants to comply with the terms of the 

Indemnity Agreement, and pursuing Berkley’s claims against the Defendants under the 

Indemnity Agreement in this present lawsuit. In light of the required volume of legal 

work, the complexity of the issues and the number of players involved in this matter, 

the Court finds that the legal services provided to and paid by Berkley in the amount of 

$84,225.74 were reasonable under the circumstances. 

3. Consulting Fees

The Affidavits show that Berkley paid $25,082.69 in consulting fees to Nicholson 

Professional Consulting, Inc. (“Nicholson”) in connection with general and specific 

consulting services Nicholson provided to Berkley on matters involving the Principal, 

the Bonds and the Bond Claims. Affidavit Two contains specific information on the 

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date and amount of each payment Berkley made to Nicholson. As with the legal 

services invoices, Berkley also submitted Nicholson’s invoices to the Court, under seal, 

for judicial review. Upon review of the Affidavits and the invoices submitted under 

seal, the Court finds that the consulting services provided to and paid by Berkley in the 

amount of $25,082.69 were reasonable under the circumstances. 

IV. STANDARD OF REVIEW

The Federal Rules of Civil Procedure establish a two-part process for 

obtaining a default judgment. Fed.R.Civ.P. 55. If “a party against whom a 

judgment for affirmative relief is sought has failed to plead or otherwise 

defend” the clerk of court “must enter the party's default.” Fed.R.Civ.P. 

55(a). After default has been entered, if the “claim is for a sum certain or a 

sum that can be made certain by computation” the clerk must enter 

default. Fed.R.Civ.P. 55(b)(1). In all other circumstances, such as here, “the 

party must apply to the court for a default judgment.” Fed.R.Civ.P. 

55(b)(2). Also, 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).

The Court of Appeals for the Eleventh Circuit has held that although “a 

default is not treated as an absolute confession by the defendant of his 

liability and of the plaintiff's right to recover, a defaulted defendant is 

deemed to admit the plaintiff's well-pleaded allegations of fact. The 

defendant, however, is not held to admit facts that are not well-pleaded or 

to admit conclusions of law.” Tyco Fire & Sec., LLC v. Alcocer, 218 Fed. 

Appx. 860, 863 (11th Cir.2007) (per curiam) (citations and internal 

quotations omitted). Moreover, “before entering a default judgment for 

damages, the district court must ensure that the well-pleaded allegations 

of the complaint ... actually state a cause of action and that there is a 

substantive, sufficient basis in the pleadings for the particular relief 

sought.” Id. (emphasis omitted). Therefore, [Plaintiff] must establish a 

“prima facie liability case” against the defendants. Pitts ex rel. Pitts v. 

Seneca Sports, Inc., 321 F.Supp.2d 1353, 1357 (S.D.Ga.2004) (citations 

omitted).

Also, when assessing default judgment damages, the Court has “an 

obligation to assure that there is a legitimate basis for any damage award 

it enters.” Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th 

Cir.2007). Therefore, when ruling on a motion for default judgment, the 

Court must determine whether there is a sufficient factual basis in the 

complaint upon which a judgment may be entered. See Nishimatsu Constr. 

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

Gray Cas. & Sur. Co., 2012 WL 1145186, at *3-4 (S.D. Ala. Apr. 5, 2012)

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V. ANALYSIS

Under the Indemnity Agreement, the Defendants are jointly and severally 

obligated to indemnify Berkley for, inter alia, all damages, costs, losses, expenditures, 

and payments made by Berkley under the Bonds and in enforcing the Indemnity 

Agreement. The damages to which Berkley is explicitly entitled include court costs, 

costs to settle or compromise any claim, expert fees, investigative costs, and the fees of 

attorneys, accountants and other professionals. The damages sought by Berkley in its 

Motion for Default Judgment represent those damages, costs, losses, expenditures, and 

payments made by Berkley under the Bonds and in enforcing the Indemnity Agreement 

for which it is entitled to indemnification under Article 1.01 of the Indemnity 

Agreement. 

A surety is entitled to reimbursement pursuant to an indemnity contract for 

payments made by the surety with a good faith belief that it was required to pay, 

regardless of whether any liability actually existed. Travelers Cas. & Sur. Co. of Am. v. 

Thorington Elec. & Const. Co., No. 2:09-CV-37-WKW, 2009 WL 4758729, at *2 (M.D. Ala. 

Dec. 8, 2009); Frontier Ins. Co. v. Int’l, Inc., 124 F. Supp. 2d 1211, 1213 (N.D. Ala. 2000). 

The Affidavits establish that Berkley satisfied valid Bond Claims in good faith and with 

the reasonable belief that said Bond Claims were due. Moreover, the Court has found 

that Berkley sustained a net loss (exclusive fees, expenses and costs) under the Bonds in 

the sum of $368,712.60 in good faith and that the legal and consulting services provided 

to and paid by Berkley in the collective amount of $109,308.40 were reasonable under 

the circumstances. 

Berkley has further complied with the proof requirements set forth in Article 2.01 

of the Indemnity Agreement by (1) submitting an itemized, sworn statement of its 

damages, costs, losses, expenditures, and payments and (2) submitting copies of checks 

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and drafts for such damages, costs, losses, expenditures, and payments, although 

complying with only one of these requirements would have constituting prima facie

evidence of the liability of the Defendants to Berkley. Provisions similar to Article 2.01 

are common in construction surety indemnity agreements. Other courts have found 

that a surety’s compliance with such similar provisions constitutes prima facie evidence 

of the fact and amount of the indemnitors’ liability to the surety. See, e.g. Liberty Mutual 

Insurance Co. v. CTS Earthmoving, Inc., No. CV12–00089 JMS–KSC, 2012 WL 6704055 (D. 

Ha. Dec. 4, 2012); First National Insurance Company of America v. Maxim Construction, Inc., 

No. 3:11–CV–00715–LRH–VPC, 2012 WL 6204293 (D. Nev. Dec. 12, 2012) Bond Safeguard 

Insurance Co. v. Ridgeview Development, LLC, No. 11–cv–03275–WJM–KMT, 2012 WL 

4511285 (D. Colo. Oct. 1, 2012); Great Am. Ins. Co. v. Wayne Evans Auction Co. Inc., 4:12-

CV-45 CDL, 2012 WL 2154245 (M.D. Ga. June 13, 2012); Gray Cas. & Sur. Co. v. 

McConnell Contracting, LLC, No. 11-0184-KD-N, 2012 WL 1145186 (S.D. Ala. Apr. 5, 

2012); Ins. Co. of the W. v. H & G Contractors, Inc., No. C-10-390, 2011 WL 4738197 (S.D. 

Tex. Oct. 5, 2011); SureTec Insurance Co. v. Cairns Corp., No. 8:10–cv–2794, 2011 WL 

1061230 (M.D. Fla. March 22, 2011).

V. CONCLUSION

Berkley has, therefore, submitted ample evidence to establish the fact and 

amount of the Defendants’ liability to Berkley. Accordingly, the Court has determined 

that Berkley’s Motion for Default Judgment (doc. 14) should be GRANTED. It is 

therefore RECOMMENDED that default judgment be entered against the Defendants, 

jointly and severally, in favor of Berkley, in the amount of $478,021.03. 

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

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it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 

72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-

1, “[a] party failing to object to a magistrate judge’s findings or recommendations 

contained in a report and recommendation in accordance with the provisions of 28 

U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based 

on unobjected-to factual and legal conclusions if the party was informed of the time 

period for objecting and the consequences on appeal for failing to object. In the absence 

of a proper objection, however, the court may review on appeal for plain error if 

necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection 

must identify the specific finding or recommendation to which objection is made, state 

the basis for the objection, and specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the Magistrate Judge is not 

specific.

DONE this the 6th day of August 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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