Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nationwide Mutual Insurance Co. v. Jones

United States District Court, W.D. Virginia, Roanoke Division

November 8, 2018

NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff,
v.
STARK JONES, DGW ENTERPRISES, LLC, and FEEDING AMERICA SOUTHWEST VIRGINIA, Defendants.

          REPORT AND RECOMMENDATION [1]

          Hon. Robert S. Ballou United States Magistrate Judge

This matter is currently before me on cross claimant Feeding America Southwest Virginia's (“Feeding America”) motion for entry of default judgment on its cross claim against cross defendant DGW Enterprises, LLC (“DGW”). Dkt. No. 51. DGW is currently in default on Feeding America's cross claim, and has filed no response to the motion for entry of default judgment. See Order, Dkt. No. 40; Clerk's Entry of Default, Dkt. No. 42. Because no party has requested oral argument, and I find that oral argument will not aid in my decision, this motion is ripe for decision. I RECOMMEND that Feeding America's motion for entry of default judgment be GRANTED and that Feeding America be awarded Eleven Thousand Three Hundred and Seventy Four Dollars ($11, 374.00) in attorneys' fees.[2]

         I. Background

         Nationwide Mutual Insurance Company (“Nationwide”) brought this declaratory judgment action to resolve adverse claims to a policy of insurance, following a fire at a building Feeding America had contracted to purchase from DGW. DGW Enterprises had assigned the insurance proceeds to Feeding America and, on Feeding America's motion for summary judgment, the district court determined that the Assignment of Insurance Claim from DGW to Feeding America was valid, and that Feeding America was entitled to payment of the insurance proceeds in the amount of $161, 483.97.[3] See Dkt. No. 47, 48, 50. The district court retained jurisdiction over Feeding America's cross claim against DGW, noting that the “clerk has already entered default as to [DGW] on the cross claim.”[4] Dkt. No. 50.

         Feeding America's cross claim alleges DGW breached the Addendum to Contract and the Assignment of Insurance Claim it entered into with Feeding America. See Cross Claim ¶¶ 20- 25, Dkt, No. 13. The cross claim asserts that:

by falsely communicating to Nationwide that the Assignment of Insurance Claim is ‘illegal' (when in fact [it] is valid and fully enforceable), and by instructing Nationwide that all money due for the claim should be paid to either Stark Jones or DGW, DGW has breached the Assignment of Insurance Claim and has breached the parties' contract.

Id. at ¶ 25. Feeding America moves for entry of a default judgment against DGW on the cross claim, and as damages, asks for its legal fees incurred in defending against the declaratory judgment action brought by Nationwide.

         II. Standard of Review

         Feeding America has moved for default judgment against DGW under Federal Rule of Civil Procedure 55(b)(2), which provides that where a claim is not for a sum certain, the plaintiff must apply to the court for a default judgment. However, the moving party is not entitled to default judgment as a matter of right, instead, “[a] court confronted with a motion for default judgment is required to exercise sound judicial discretion in determining whether the judgment should be entered.” EMI April Music, Inc. v. White, 618 F.Supp.2d 497, 505 (E.D. Va. 2009)) (citation omitted).[5] Though “[t]he defendant, by his default, admits the plaintiff's well-pleaded allegations of fact” he does not admit conclusions of law. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (internal quotation marks and citations omitted); see also Fed.R.Civ.P. 8(b)(6). Thus, the “appropriate inquiry is whether or not the face of the pleadings supports the default judgment and the causes of action therein.” Anderson v. Found. for Advancement, Educ. & Emp't of Am. Indians, 187 F.3d 628, 1999 WL 598860 at *1 (4th Cir. 1999) (unpublished table opinion) (citing Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).

         In a diversity action, a parties' right to recover attorneys' fees is “ordinarily governed by state law.”[6] See Ranger Const. Co. v. Prince William County School Board, 605 F.2d 1298, 1301 (4th Cir.1979); Rohn Prod. Int'l, LC v. Sofitel Capital Corp. USA, No. CIV. WDQ-06-504, 2010 WL 3943747, at *4 (D. Md. Oct. 7, 2010) (“In a diversity case, absent a conflicting applicable federal rule of procedure, state law governs not only the actual award of attorneys' fees but also the method of determining those fees.”) (quotation omitted)). Accordingly, I apply Virginia law to determine both whether Feeding America has a right to recover any attorneys fees, and the reasonableness of the fees claimed.

         III. Analysis

         A. Default Judgment

         Feeding America's cross claim contends that DGW breached the Addendum to Contract and the Assignment of Insurance Claim that it entered into with Feeding America when it asserted a claim against the Nationwide insurance proceeds, causing Nationwide to bring this action. See Cross Claim at ¶¶ 20-27, Dkt. No. 13. DGW did not defend against the declaratory judgment and did not maintain in this action that it was entitled to recover under the Nationwide policy.[7] The district court found that the Assignment of Insurance Claim from DGW to Feeding America was valid, and that Feeding America was entitled to payment of the insurance proceeds. Dkt. Nos. 48, 50. I find that the facts alleged in the cross claim, including that DGW falsely communicated to Nationwide that the Assignment of Insurance Claim was illegal and that it instructed Nationwide to pay either DGW or Start Jones the insurance proceeds, establish that DGW breached its contract with Feeding America, and that Feeding America is entitled to default judgment. See Brown v. Harris, 251 Va. 301, 306 (1996) (setting out the elements for a breach of contract action in Virginia as (1) a legal obligation, (2) a violation or breach of that right or duty, and (3) a consequential injury or damage). Accordingly, I recommend that the court grant Feeding America's motion for entry of default judgment on its cross claim against DGW.

         B. Requested Relief - ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.