IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CADENCE BANK, N.A., etc., )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 15-0134-WS-N

 )

REX CABANNIS, et al., ) 

 )

Defendants. )

 ORDER

This matter is before the Court on the plaintiff’s renewed motion for entry 

of default judgment against defendant Charles M. Clements. (Doc. 63). The 

Court previously entered default against this defendant for failure to plead or 

otherwise defend after being properly served with process, (Docs. 20-21), and he 

therefore is not entitled to notice of the instant motion.1 The plaintiff in any event 

mailed a copy of its motion to the defendant over two weeks ago, using the same 

address at which he was personally served with process. (Doc. 8; Doc. 63 at 4).

The Court may not enter default judgment against an infant or incompetent 

unless appropriately represented in the action. Fed. R. Civ. P. 55(b)(2). The Court 

can find no reference to this condition in the plaintiff’s filings. Accordingly, 

default judgment cannot be entered at this time. On the assumption the plaintiff 

will rectify this deficiency, the Court proceeds to consider the other matters 

relevant to entry of default judgment. 

As to any civil action in which the defendant does not make an appearance, 

“the court, before entering judgment for the plaintiff, shall require the plaintiff to 

file with the court an affidavit” addressing the defendant’s military status. 50 

 1 Fed. R. Civ. P. 5(a)(2); Hartford Casualty Insurance Co. v. Jenkins, 2009 WL 

4898319 at *1 n.4 (S.D. Ala. 2009).

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U.S.C. app. § 5221(a)(, (b). The plaintiff has done so. (Doc. 63-2 at 3; Doc. 63-

3). 

“The defendant, by his default, admits the plaintiff’s well-pleaded 

allegations of fact .... A default judgment is unassailable on the merits but only so 

far as it is supported by well-pleaded allegations, assumed to be true.” Nishimatsu 

Construction Co. v. Houston National Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). 

Thus, “a default judgment cannot stand on a complaint that fails to state a claim.” 

Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1371 n.41 (11th Cir. 1997). 

Rather, “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.” Tyco Fire & Security, LLC v. Alcocer, 218 Fed. Appx. 

860, 863 (11th Cir. 2007) (emphasis in original). 

The complaint (Doc. 1), alleges that the defendant guarantied payment of 

certain indebtedness to the plaintiff’s predecessor in interest. The borrower failed 

to pay, and the entire indebtedness is presently due and owing. The plaintiff made 

demand on the defendant for payment, but the defendant did not pay. The 

complaint asserts a single count, for breach of guaranty. 

The guaranty is governed by Alabama law. (Doc. 16-1 at 8). “Every suit 

on a guaranty agreement requires proof of the existence of the guaranty contract, 

default on the underlying contract by the debtor, and nonpayment of the amount 

due from the guarantor under the terms of the guaranty.” Delro Industries, Inc. v. 

Evans, 514 So. 2d 976, 979 (Ala. 1987). Moreover, “to recover under a ... 

continuing guaranty, an additional element, notice to the guarantor of the debtor’s 

default, must be proved.” Id.

2

 The amended complaint alleges the existence of a 

guaranty, the borrower’s default, notice to the defendant, and the defendant’s 

 2 A continuing guaranty is “a guaranty of future indebtedness uncertain as to 

amount or time.” Delro Industries, 514 So. 2d at 979. The instant guaranty is a 

continuing guaranty. (Doc. 1 at 7; Doc. 2-1). 

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failure to pay. These allegations actually state a cause of action, and the complaint 

contains a substantive, sufficient basis for the relief sought.

“While well-pleaded facts in the complaint are deemed admitted, plaintiffs’ 

allegations relating to the amount of damages are not admitted by virtue of default; 

rather, the court must determine both the amount and the character of damages.” 

Capitol Records v. Carmichael, 508 F. Supp. 2d 1079, 1084 n.4 (S.D. Ala. 2007);

see also Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003) (“A 

court [on entering default judgment] has an obligation to assure that there is a 

legitimate basis for any damage award it enters ....”); Adolph Coors Co. v. 

Movement Against Racism and the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (on 

default judgment, “[d]amages may be awarded only if the record adequately 

reflects the basis for award ....”); 10A Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 2688 at 58-59 (3rd ed. 1998) (“If the court 

determines that [the] defendant is in default, the factual allegations of the 

complaint, except those relating to the amount of damages, will be taken as true.”). 

Thus, the mere granting of default judgment does not establish the plaintiff’s 

entitlement to any quantum of damages.

A hearing to establish damages is not universally required. None is needed 

“where all essential evidence is already of record ..., such that any additional 

evidence would be truly unnecessary to a fully informed determination of 

damages.” Securities and Exchange Commission v. Smyth, 420 F.3d 1225, 1232 

n.13 (11th Cir. 2005). Here, suit is brought on a guaranty to obtain payment of the 

borrower’s indebtedness, and both the guaranty and an affidavit establishing the 

amount of the indebtedness have been submitted. As the record is sufficient to 

determine damages, and as the plaintiff does not request a hearing, none will be 

conducted.

“A judgment by default shall not be different in kind from or exceed in

amount that prayed for in the demand for judgment.” Fed. R. Civ. P. 54(c). The 

complaint seeks recovery of $2,343,594.87, representing the borrower’s 

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indebtedness, plus prejudgment interest at the daily rate of $297.85, plus 

reasonable attorney’s fees, expenses and costs. (Doc. 1 at 14). The renewed 

motion for default judgment seeks judgment in the amount of $1,914,128.79, plus 

prejudgment interest at the daily rate of $225.53, plus reasonable attorney’s fees, 

expenses and costs. (Doc. 63 at 3). The plaintiff’s requested default judgment 

thus does not violate Rule 54(c).

The plaintiff seeks recovery of incurred attorney’s fees and expenses of 

$17,958.50. The guaranty provides for recovery of reasonable attorney’s fees. 

The affidavit of counsel reflects that the time and expenses billed were actually 

and reasonably incurred and are reasonable in amount.3

For the reasons set forth above, the Court concludes that the plaintiff

appears entitled to judgment against the defendant in the requested amount. 

However, before its motion may be granted or judgment entered, the plaintiff must 

comply with Rule 55(b)(2). The plaintiff is ordered to do so on or before May 9, 

2016. 

DONE and ORDERED this 25th day of April, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE 

 3 The defendant’s guaranty makes him jointly and severally liable for all 

attorney’s fees, even though most of them were incurred in pursuing relief from the other, 

non-defaulting guarantors. (Doc. 2-1 at 1, 4).

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