IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

AM. CONTRACTORS INDEM. CO., et al.,

Plaintiffs,

v. Case No. 1:21-cv-21-AW-GRJ

ALLAN SPEAR CONSTR. LLC, et al.,

Defendants.

_______________________________/ FINAL ORDER This is a contract dispute. American Contractors Indemnity Company, United States Surety Company, and U.S. Specialty Insurance Company sued Allan and Vivian Spear and several related LLCs. ECF No. 1. Despite service, no defendant has appeared, and a clerk’s default entered. Plaintiffs then moved for a default judgment, and the magistrate judge conducted an evidentiary hearing. The magistrate judge issued a report and recommendation, concluding that the Plaintiffs’ motion should be granted. ECF No. 21. No objections have been filed. First, I must ensure there is jurisdiction. By not responding, the defendants admit the complaint’s factual allegations. Those allegations include that both Spearses are domiciled in, and citizens of, Florida. Compl. ¶¶ 13, 14. As to the various LLC defendants, the complaint alleges that each is a Florida citizen because each of its members (one or both of the Spearses) is a Florida citizen. Id. ¶¶ 5-12; see also Rolling Greens MHP, L.P. v. Comcast SCH Holdings LLC,

(11th Cir. 2004). None of the three corporate Plaintiffs is incorporated in or

headquartered in Florida, so none is a Florida citizen. Thus, there is complete diversity. And more than $75,000 is at stake. The court has jurisdiction.

.

The magistrate judge correctly concludes that the complaint states a claim. And no party has objected to the magistrate judge’s factual findings. I now conclude that the Report and Recommendation should be adopted, and it is incorporated into this order. The Plaintiffs are entitled to a final judgment as to

Count I—the breach-of-contract provision. They have abandoned the remaining claims, see ECF No. 25,1 so final judgment can issue. That judgment will include $704,757.00 in damages. It will also include $39,228.48 in prejudgment interest.2 It

1 The Plaintiffs abandoned these claims by filing a Rule 41 notice. ECF No. 25. This is not the proper procedure to dismiss the other claims, see Klay v. United Healthgroup, Inc.,

(11th Cir. 2004) (“Put simply, Rule 41 allows a plaintiff to dismiss all of his claims against a particular defendant; its text does not permit plaintiffs to pick and choose, dismissing only particular claims within an action.”), but it is clear that Plaintiffs have abandoned what is left, which they acknowledge were alternative claims anyway. Therefore, I will treat the notice as a motion to drop those claims, I will grant that motion, and final judgment will issue. 2 The Report and Recommendation recommended prejudgment interest “as calculated in ECF No. 19-7.” ECF No. 21 at 14. That amount is $22,900.64, plus $107.42 daily from May 13 to October 11, 2021 (152 days), which adds $16,327.84, for a total of $39,228.48. See also ECF No. 17-1 at 7. will also include $8,083.50 in fees and $1,111.98 in costs associated with this action. I have reviewed the affidavit supporting these fees and, based on that affidavit and

the court’s own experience, determine the requested fees to be reasonable. Last, the final judgment will also include postjudgment interest at the statutory rate. It is now ORDERED:

1. The Report and Recommendation (ECF No. 21) is adopted and incorporated into this order. 2. The motion for default judgment (ECF No. 17) and the motion for fees and costs (ECF No. 22) are GRANTED.

3. The clerk will enter a judgment that says, “This action was decided on a motion for default judgment. The court has ordered that Plaintiffs American Contractors Indemnity Company, a California Corporation; United States Surety

Company, a Maryland Corporation; and U.S. Specialty Insurance Company, a Texas Corporation recover from Defendants Allan Spear Construction, LLC, a Florida limited liability company; A&G Equipment Rentals, LLC, a Florida limited liability company; Chear, LLC, a Florida limited liability company; Kusky & Spear, LLC, a

Florida limited liability company; Spear Hauge, LLC, a Florida limited liability company; Spear Northwood, LLC, a Florida limited liability company; Spear Holdings, LLC, a Florida limited liability company; Trisal, LLC, a Florida limited

liability company; Allan W. Spear, III, an individual; and Vivian C. Spear, an individual, jointly and severally, the total of $753,180.96, which includes prejudgment interest and attorney’s fees and costs. Postjudgment interest will accrue

at the statutory rate.” 4. The clerk will close the file. SO ORDERED on October 12, 2021.

s/ Allen Winsor United States District Judge