IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LANDMARK AMERICAN INSURANCE )

COMPANY, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 16-00032-KD-N

)

WHITE-SPUNNER CONSTRUCTION, )

INC., MICHAEL SCOT RIBOLLA d/b/a )

AMERICAN SPORTS SCAPES, and )

MICHAEL SCOT RIBOLLA, )

Individually, )

)

Defendants. )

ORDER 

This action is before the Court on the motion for default judgment filed by Plaintiff 

Landmark American Insurance Company and the affidavit in support (doc. 35). Upon 

consideration and for the reasons set forth herein, the motion is GRANTED.

1

 

I. Findings of fact 

Landmark issued a commercial lines insurance policy to Defendant Michael Scot Ribolla 

individually and d/b/a American Sports Scapes (hereinafter the Ribolla defendants) for the policy 

period of June 8, 2012 through June 8, 2013 (doc. 5-1). The policy shows the “named insured” 

as “American Sports Scapes, Scot Ribolla” with a mailing address of “P.O.B. 816, Lillian, 

Alabama, 36549” (doc. 5-1, p. 2). 

Earlier, on May 30, 2012, White-Spunner Construction, Inc., contracted with the Ribolla 

 1 The Federal Rules of Civil Procedure provide that the district court may conduct a 

hearing to enter a judgment if it needs to “conduct an accounting”, “determine the amount of 

damages”, “establish the truth of any allegation by evidence” or “investigate any other matter.” 

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 1 of 13
2

defendants to install an irrigation system at the Alabama Veterans Memorial Cemetery in 

Spanish Fort, Alabama (doc. 5-2). The choice of law and venue provision deemed the 

subcontract to have been entered into in Mobile County, Alabama (doc. 5-2, p. 15). The 

provision also stated that the subcontract would be interpreted in accordance with the laws of the 

State of Alabama and that the “forum for any litigation between the parties shall be the Circuit 

Court of Mobile County, Alabama” (doc. 5-2, p. 15). The subcontract also contained an 

indemnity provision as to which the parties agreed “that Alabama law would control the validity 

and interpretation of this defense and indemnity provision” (doc. 5-1, p. 12). The subcontract 

shows the mailing address for the Ribolla defendants as “PO Box 816, Lillian, Alabama, 36549” 

and “300 Calhoun Ave., Pensacola, Fla. 32502” (doc. 5-2, p. 2). 

By letter of July 3, 2014, White-Spunner notified the Ribolla defendants that they had 

performed defective work because the irrigation piping was not installed in accordance with the 

contract specifications. White-Spunner asked the Ribolla defendants to respond immediately. 

White-Spunner also stated that it had notified the Ribolla defendants’ insurance agent, Calvert 

Insurance, Inc., and their insurance company, Landmark (doc. 5-3). That same day, as stated in 

the letter to the Ribolla defendants, White-Spunner notified Landmark by letter and made a claim 

under the policy as an additional insured (doc. 5-4). 

On July 16, 2014, Landmark issued a reservation of rights letter to the Ribolla defendants

and assigned an adjuster to evaluate the alleged damage (doc. 5-5). Landmark requested certain 

information and documentation, but the Ribolla defendants did not respond or provide the 

documentation (doc. 5, p. 3). 

On February 26, 2015, counsel for White-Spunner wrote to Landmark and advised that it 

had incurred damages of approximately $758,778.68 and that if that amount was not paid, it 

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 2 of 13
3

would file suit on March 10, 2015 (doc. 5, p. 3). As stated, White-Spunner filed suit in the 

Circuit Court of Mobile County, Alabama on March 10, 2015 (the state court action) (doc. 5-6). 

According to the Circuit Court docket, the Ribolla defendants were served with the complaint on 

March 15, 2015 (doc. 5-7). Neither the Ribolla defendants nor White-Spunner notified Landmark 

that the suit had been filed (doc. 5, p. 3). 

On May 12, 2015, White-Spunner obtained a default judgment against the Ribolla 

defendants in the amount of $758,778.68, plus costs in the state court action (doc. 5-8). On 

October 20, 2015, White-Spunner sent a copy of the judgment to Landmark and demanded 

payment (doc. 5-9). This was Landmark’s first notice that a lawsuit had been filed (doc. 5, p. 4). 

The terms and conditions of the policy place specific duties upon the Ribolla defendants

to notify Landmark “as soon as practicable” in the event of an occurrence or an offense and to 

notify Landmark in writing, as soon as practicable, in the event of claim or suit (doc. 5-1, Policy 

§ IV, 2). The policy also requires the Ribolla defendants to “immediately send ... copies of any 

demand, notices, summonses, or legal papers received in connection with the claim or suit”, to 

authorize Landmark to obtain records and other information, and to cooperate with the 

investigation or settlement of the claim or lawsuit. (Id.) As of the filing of the complaint for 

declaratory judgment in this court, the Ribolla defendants had not notified Landmark as to 

White-Spunner’s claim or the state court action (doc. 5. p. 3). 

II. Jurisdiction

Landmark alleges that this Court has subject matter jurisdiction based on diversity of 

citizenship, 28 U.S.C. § 1332. In the amended complaint, Landmark alleges that it is a citizen of 

Oklahoma, that White-Spunner is a citizen of Alabama, the Ribolla defendants are citizens of 

Florida, and the amount in controversy exceeds $75,000.00 (doc. 5). The amended complaint 

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 3 of 13
4

was signed by counsel for Landmark and thus subject to Rule 11(b)(3) of the Federal Rules of 

Civil Procedure which 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”. 

The Ribolla defendants did not answer or otherwise respond to the amended complaint. WhiteSpunner answered and admitted that it is a citizen of Alabama (doc. 13). Therefore, the Court 

will accept these jurisdictional allegations as true. 

The Court must also determine whether it has personal jurisdiction over the non-resident 

Ribolla defendants. “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.” Prewitt 

Enterprises, Inc. v. Organization of Petroleum Exporting Countries, 353 F.3d 916, 925 n. 15 

(11th Cir. 2003); In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1299 (11th Cir. 2003) 

(“Generally, where service of process is insufficient, the court has no power to render judgment 

and the judgment is void.”). “It is axiomatic that absent good service, the court has no in 

personam or personal jurisdiction over a defendant.” Nationwide Mutual Fire Ins. Co. v. 

Creation's Own Corp., S.C., 2011 WL 6752561, 2 (M.D. Fla. November 16, 2011) (citations 

omitted).

As to amenability to jurisdiction, a “federal district court sitting in diversity may exercise 

personal jurisdiction to the extent authorized by the law of the state in which it sits[.]” Meier v. 

Sun International Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). In that regard, Alabama's 

long-arm statute, in relevant part, provides as follows:

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 4 of 13
5

(b) Basis for Out-of-State Service. An appropriate basis exists for service of 

process outside of this state upon a person or entity in any action in this state 

when the person or entity has such contacts with this state that the prosecution of 

the action against the person or entity in this state is not inconsistent with the 

constitution of this state or the Constitution of the United States [.]

Ala. R. Civ. P. Rule 4.2(b) (Effective August 1, 2004).

The Alabama Supreme Court has held that the “extent of an Alabama court's personal 

jurisdiction over a person or corporation is governed by Rule 4.2, Ala. R. Civ. P., Alabama's 

‘long-arm rule,’ bounded by the limits of due process under the federal and state constitutions.” 

Ex parte DBI, Inc., 23 So.3d 635, 2009 WL 1164959, 7 (Ala. May 1, 2009) (citing Sieber v. 

Campbell, 810 So.2d 641, 644 (Ala.2001)); Hiller Investments Inc. v. Insultech Group, Inc., 957 

So.2d 1111, 1115 (Ala.2006) (“Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the 

Alabama courts to the limit of due process under the federal and state constitutions.”). The 

Alabama Supreme Court further explained that it has “interpreted the due process guaranteed 

under the Alabama Constitution to be coextensive with the due process guaranteed under the 

United States Constitution.” Ex parte DBI, Inc., at *7 (quoting Elliott v. Van Kleef, 830 So.2d 

726, 730 (Ala.2002)). The Alabama Supreme Court also stated that

[t]he Due Process Clause of the Fourteenth Amendment permits a forum state to 

subject a non-resident defendant to its courts only when that defendant has 

sufficient ‘minimum contacts' with the forum state. International Shoe Co. v. 

Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical 

question with regard to the nonresident defendant's contacts is whether the 

contacts are such that the nonresident defendant ‘ “should reasonably anticipate 

being haled into court” ’ in the forum state. Burger King Corp. v. Rudzewicz, 471 

U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S. Ct. 559, 62 L.Ed.2d 

490 (1980).”

Ex parte DBI, Inc., at *8 (quoting Elliot, 830 So.2d at 730). Moreover, “being physically present 

in a state is not required in order for a state court to have personal jurisdiction over a defendant.” 

Ex parte DBI, Inc., at *19 (citing Burger King, 471 U.S. at 476).

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 5 of 13
6

The Alabama Supreme Court has also explained that “[d]epending on the quality and 

quantity of the contacts jurisdiction may be either general or specific.” Ex parte Barton, 976 

So.2d 438, 443 (Ala. 2007). “General jurisdiction applies where a defendant's activities in the 

forum state are substantial or continuous and systematic, regardless of whether those activities 

gave rise to the lawsuit [pending before the court].... A court has specific jurisdiction when a 

defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.” 

Id. (internal quotations and citations omitted) (bracketed text added). 

Landmark has not alleged that the Ribolla defendants’ activities in Alabama are 

substantial or continuous and systematic. Landmark has alleged facts that indicate the Ribolla 

defendants’ “few contacts” with Alabama – entering into the insurance policy contract with 

Landmark, entering into the sub-contract with White-Spunner, and performing work at Spanish 

Fort, Alabama – gave rise to this civil action. Also, at the time of issuance of the policy and 

entering into the subcontract, the Ribolla defendants maintained a post office box in Lillian, 

Alabama. Therefore, the Ribolla defendants’ contacts are sufficient to establish specific 

jurisdiction. 

However, in Barton, the Alabama Supreme Court further explained that “regardless of 

whether jurisdiction is alleged to be general or specific, the nexus between the defendant and the 

forum state must arise out of an action of the defendant [that was] purposefully directed toward 

the forum State.” 976 So. 2d at 443 (citations omitted). “This purposeful-availment requirement 

assures that a defendant will not be haled into a jurisdiction as a result of the unilateral activity of 

another person or a third person.” Id. (internal quotations and citation omitted).

In that regard, Landmark alleges that it entered into an insurance policy contract with the 

Ribolla defendants. The policy shows the Ribolla defendants’ mailing address as “P.O.B. 816, 

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 6 of 13
7

Lillian, Alabama, 36549” (doc. 5-1, p. 2). Landmark alleges that the Ribolla defendants entered 

into a subcontract with White-Spunner, whose place of business is in Mobile County, Alabama, 

to perform work in Spanish Fort, Alabama. The subcontract contains choice of law provisions 

whereby the parties agreed that the laws of the State of Alabama would apply (doc. 5-2, p. 12, 

15). The parties also agreed that the subcontract was deemed to have been entered into in 

Mobile County, Alabama and that the “forum for any litigation between the parties shall be the 

Circuit Court of Mobile County, Alabama” (doc. 5-2, p. 15). The subcontract shows the Ribolla 

defendants’ mailing address as “PO Box 816, Lillian, Alabama, 36549” and “300 Calhoun Ave., 

Pensacola, Fla. 32502” (doc. 5-2, p. 2). The Court finds that there is sufficient evidence that the 

Ribolla defendants’ actions were purposefully directed toward the forum state, Alabama.

As to service of process, Landmark filed an amended affidavit wherein it stated that 

Ribolla d/b/a American Sports Scapes and Ribolla individually had been served on April 7, 2016 

(docs. 28, 26-2). Also, the Proofs of Service executed by the private process server indicated 

that the Ribolla defendants were served on April 7, 2016 (docs. 23, 27). The Clerk entered 

default on May 20, 2016 (doc. 29). The Court finds that service of process of the amended 

complaint was sufficient. 

The Court, having determined that the Ribolla defendants’ contacts with Alabama were 

sufficient to establish specific jurisdiction and that there is sufficient evidence their actions were 

purposefully directed toward the forum state of Alabama, now finds that the Ribolla defendants

are amenable to jurisdiction. The Court has also determined that service of process was 

sufficient. Accordingly, the Court finds that it has personal jurisdiction over the Ribolla 

defendants. 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 

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 7 of 13
8

lacks jurisdiction over the person of a defendant when that defendant has not been served.”) 

(citation omitted).

III. Statement of the law

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, and that failure is shown by affidavit or 

otherwise, the clerk 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 judgment. 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. 

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, the plaintiff must 

establish a “prima facie liability case” against the defendant. Pitts ex rel. Pitts v. Seneca Sports, 

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

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 8 of 13
9

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).

IV. Analysis

The Ribolla defendants were served with the amended complaint on April 7, 2016. 

White-Spunner’s answer to the amended complaint was served on the Ribolla defendants by mail 

to an address in LaPlace, Louisiana2 (doc. 21, p. 11). The certificate of service on the request for 

entry of default and the motion for default judgment indicates that copies were mailed to the 

Ribolla defendants at the same address in LaPlace, Louisiana (doc. 26, p. 2, doc. 35, p. 2). 

Discovery notices were also mailed to the same address (docs. 30-32, 34). The Clerk entered 

default on May 20, 2016 (doc. 29). Therefore, the Ribolla defendants have had notice of the 

proceedings but to date, have not pleaded, answered, or otherwise responded to the amended 

complaint or the motions. 

In the amended complaint, Landmark alleged substantially the same facts as those set 

forth in this Court’s findings of fact. Also, in the amended complaint, Landmark pleaded the 

conditions of the policy that obligated the Ribolla defendants to notify Landmark. The policy 

states as follows: 

SECTION IV – COMMERICIAL GENERAL LIABILITY CONDITIONS. . .

 2

 Apparently, Ribolla no longer lives in Florida. The private process server indicated 

that he contacted Ribolla in LaPlace, Louisiana and they arranged to meet in Metairie, Louisiana. 

The Ribolla defendants were personally served in Metairie (doc. 23, p. 2). 

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 9 of 13
10

2. Duties In the Event Of Occurrence, Offense, Claim Or Suit

a. You must see to it that we are notified as soon as practicable of an “occurrence” 

or an offense which may result in a claim. To the extent possible, notice should 

include:

(1) How, when and where the “occurrence” or offense took 

place;

(2) The names and addresses of any injured persons and 

witnesses; and

(3) The nature and location of any injury or damage arising 

of the “occurrence” or offense.

b. If a claim is made or “suit” is brought against any insured, you must:

(1) Immediately record the specifics of the claim or “suit” and the date

received; and

(2) Notify us as soon as practicable.

You must see to it that we receive written notice of the claim or “suit” as soon as

practicable.

c. You and any other involved insured must: 

(1) Immediately send us copies of any demands, notices, 

summonses or legal papers received in connection with the claim or 

“suit”;

(2) Authorize us to obtain records and other information;

(3) Cooperate with us in the investigation or settlement of the claim 

or defense against the “suit”; and

(4) Assist us, upon our request, in the enforcement of any right 

against any person or organization which may be liable to the 

insured because of injury or damage to which this insurance may 

apply.

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 10 of 13
11

d. No insured will, except at that insured’s own cost, voluntarily make a payment, 

assume any obligation, or incur any expense, other than for first aid, without our 

consent. 

(Doc. 5, p. 4-5).

Landmark alleges that the Ribolla defendants have not complied with these material 

terms of the policy because they did not notify Landmark of White-Spunner’s demand letter, or 

the complaint against them in the Circuit Court of Mobile County, or the default judgment that 

White-Spunner obtained in that action. Based upon those facts and the terms of the policy

regarding notice, Landmark sought the following declaratory relief: 

As a result of the facts as outlined above Landmark requests a declaration from

this Honorable Court determining that Landmark has no duty to pay the default 

judgment on behalf of Ribolla or Ribolla d/b/a American Sports Scapes as they 

did not meet material conditions of the policy. Specifically, Ribolla and Ribolla 

d/b/a American Sports Scapes failed to provide timely notice of the lawsuit and 

because of this failure to comply with conditions of the policy, Landmark is 

prejudiced and accordingly, they are not entitled to coverage.

Furthermore, Landmark seeks a declaration that notwithstanding the judgment, it

owes no duty for the alleged damage and/or defective construction as Ribolla and 

Ribolla d/b/a American Sport Scapes failed to assist in the investigation of the 

claim and provide material requested by Landmark.

Finally, Landmark seeks a declaration that it owes no duty to White-Spunner for 

payment of any judgment and/or damages as there is no coverage for the alleged 

damage under the Landmark policy.

(Doc. 5, p. 5, ¶¶ 21-23). 

Under Alabama law, when an insurance company’s notice requirement is a condition in 

an insurance policy, it is a condition precedent to coverage for the insured under the policy. 

Pharr v. Continental Casualty Co., 429 So.2d 1018, 1019 (Ala.1983); Martin v. Auto–Owners 

Ins., 57 Ala. App. 489, 329 So.2d 547, 550 (Ala.Civ.App. 1976). Generally, the insured must 

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 11 of 13
12

give notice “within a reasonable time under all the circumstances.” U.S. Fidelity & Guarantee

Co. v. Baldwin County Home Builders Assoc., Inc., 770 So.2d 72, 75 (Ala. 2000) (citations 

omitted). 

Since the Ribolla defendants have been served and failed to answer or otherwise respond 

to the amended complaint, they are in default and deemed to have admitted the factual 

allegations. Since the admitted factual allegations establish that the Ribolla defendants never 

gave notice to Landmark, the allegations in the amended complaint state a cause of action for 

declaratory relief. Further, the admitted factual allegations state a sufficient and substantive 

basis for the declaratory relief sought. See Tyco, 218 Fed. Appx at 863; Anheuser Busch, Inc., 

317 F.3d at 1266. 

Upon consideration of the pleadings, the Court is satisfied that the well-pleaded 

allegations of fact in the amended complaint state a cause of action for declaratory relief and that 

there is a substantive, sufficient basis in the pleadings for the relief sought. 

However, 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). Therefore, to the extent that Landmark may 

now seek declaratory relief that differs in kind from the demand for declaratory relief in the 

amended complaint, the Court may not award such relief. 

V. Conclusion

Upon consideration of the foregoing, declaratory judgment by default is entered in favor 

of Landmark and against Ribolla individually and Ribolla d/b/a/ American Sport Scapes for 

failure to plead or otherwise defend, as follows: 

1) Landmark has no duty to pay the state court default judgment on 

behalf of Ribolla or Ribolla d/b/a American Sports Scapes because they 

failed to provide timely notice of the lawsuit and because of this failure 

to comply with conditions of the policy, Landmark is prejudiced, and 

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 12 of 13
13

they are not entitled to coverage.

2) Notwithstanding the state court judgment, Landmark owes no duty 

for the alleged damage and/or defective construction because Ribolla 

and Ribolla d/b/a American Sport Scapes failed to assist in the 

investigation of the claim and provide material requested by Landmark.

Final default judgment shall be entered by separate document as provided in Rule 58(a) 

of the Federal Rules of Civil Procedure. 

The Clerk is directed to mail a copy of this order to the following: 

Michael Scot Ribolla

d/b/a American Sports Scapes 

1105 North Sugar Ridge Road 

LaPlace, Louisiana 70068

Michael Scot Ribolla

1105 North Sugar Ridge Rd. 

LaPlace, Louisiana 70068

DONE this the 26th day of September 2016. 

s/ Kristi K. DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

Case 1:16-cv-00032-KD-N Document 37 Filed 09/26/16 Page 13 of 13