TWC Acqua Limited v. RFIB Group Limited

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 1 of 17

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12100

Non-Argument Calendar

____________________

TWC ACQUA LIMITED,

Plaintiff-Appellee,

versus

RFIB GROUP LIMITED,

Subscribing to Policy No.

B0750RMAMY1707886,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 2 of 17

2 Opinion of the Court 23-12100

D.C. Docket No. 0:22-cv-60876-AHS

____________________

Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

RFIB Group Limited, an insurance broker, appeals from the

district court’s order granting in part an insured’s (TWC Acqua

Limited) motion for a default judgment. By granting in part TWC

Acqua Limited’s motion, the district court held RFIB Group

Limited liable on TWC Acqua Limited’s breach of contract claim.

However, to support entry of default judgment in its favor, TWC

Acqua Limited needed to plausibly allege that RFIB Group Limited

breached the terms of the parties’ contract. TWC Acqua Limited

did not do so. Accordingly, after careful review, we vacate the

district court’s order and remand with instructions to dismiss

without prejudice TWC Acqua Limited’s complaint for failure to

state a claim.

I. Background

On May 9, 2022, TWC Acqua Limited (“TWC”) sued RFIB

Group Limited (“RFIB”) for breach of an insurance contract in the

United States District Court for the Southern District of Florida.

According to the complaint, RFIB is an insurance company doing

business in Florida. TWC bought a marine insurance policy (“the

policy”) through RFIB to insure TWC’s 2006 116-foot Broward

Motor Yacht (“the M/Y Acqua”). The policy was in effect from

March 4, 2017, to March 3, 2018. The policy listed RFIB as “Lloyd’s

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 3 of 17

23-12100 Opinion of the Court 3

Broker,” and listed “Lloyd’s Syndicate BRT 2987,” “Lloyd’s

Syndicate MRS 0457,” and “Lloyd’s Syndicate CHN 2015” as the

policy’s “(re)insurers.” TWC regularly paid its premiums under

the policy.

In early June 2017, the M/Y Acqua was docked in Fort

Lauderdale, Florida. While there, heavy rains created leaks in the

M/Y Acqua and caused water damage to the M/Y Acqua’s interior.

TWC notified its insurance agents and sought indemnification

under the policy. TWC did not receive indemnification for the

damages that the M/Y Acqua suffered.

As a result, on May 9, 2022, TWC sued RFIB for breach of

contract in the United States District Court for the Southern

District of Florida. TWC attached a copy of the policy to its

complaint. On September 13, 2022, TWC moved for an entry of a

default against RFIB for failure to appear or otherwise defend the

suit. The next day, the clerk of court entered default against RFIB.

On September 21, 2022, RFIB appeared for the first time.

The next day, RFIB moved to set aside the entry of default. In its

motion, RFIB argued that it had good cause for failing to appear or

file a responsive pleading in time because “there appear[ed] to have

been a misunderstanding between [TWC]’s Counsel and [RFIB]’s

prior Counsel regarding the scope of the extension of time to

respond to the Complaint.”1 The district court denied RFIB’s

1 In RFIB’s reply in support of its motion to set aside the entry of default, RFIB

attached a declaration from its former counsel. In that declaration, RFIB’s

former counsel explained that he twice asked TWC’s counsel for an extension

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 4 of 17

4 Opinion of the Court 23-12100

motion to set aside the entry of default. The district court

concluded that RFIB had failed to show good cause as required to

set aside the default, noting that TWC and RFIB’s purported

agreement for an extension of time was not self-executing absent

court approval, which RFIB never sought.2

RFIB moved for reconsideration of the district court’s denial

of its motion to set aside the entry of default. In that motion, RFIB

repeated its argument that it had agreed with TWC for an

extension of time to file a responsive pleading, and RFIB argued

that TWC “reneged” on their agreement in an act of “clandestine

gamesmanship.” RFIB attached three declarations and several e-

mails to support its arguments for reconsideration.

On the same day that RFIB moved for reconsideration,

TWC moved for a default judgment. RFIB argued in opposition

that TWC failed to state a claim for breach of contract against RFIB

of time to file a responsive pleading, and TWC’s counsel consented both

times. RFIB’s former counsel, however, did not file anything with the district

court concerning an extension of time.

2 RFIB also moved to transfer venue under 28 U.S.C. § 1404(a) based on a

forum selection clause in the policy. In the same order denying RFIB’s motion

to set aside the entry of default, the district court denied as moot RFIB’s

motion to transfer without reaching the merits of that motion. On appeal,

RFIB argues that the forum selection clause divested the district court of

subject matter jurisdiction; thus, the district court should have transferred this

action.

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 5 of 17

23-12100 Opinion of the Court 5

because RFIB is not the “insurer” under the policy; thus, RFIB

cannot be liable under the policy for TWC’s claimed damages. 3

The district court denied RFIB’s motion for reconsideration.

The district court rejected RFIB’s arguments concerning the

parties’ purported agreement about an extension of time for RFIB

to file a responsive pleading because RFIB’s arguments and

evidence were “neither new nor compelling,” and the district court

noted that the record established that RFIB “was properly served,

[and] counsel for both sides were in communication, but no

motions [for an extension] were filed.”

Finally, the district court granted in part and denied in part

TWC’s motion for a default judgment. The district court granted

the default judgment as to liability for breach of contract in favor

of TWC but declined to enter damages without more evidence as

to the amount of damages. RFIB timely appealed.

II. Discussion

In its notice of appeal, RFIB stated that it was appealing three

of the district court’s orders: (1) the order denying RFIB’s motion

to set aside the entry of default, (2) the order denying RFIB’s

motion for reconsideration, and (3) the order granting in part

TWC’s motion for a default judgment as to liability. We issued a

3 RFIB also argued that TWC’s requested damages were speculative and

unsupported by the evidence. RFIB, however, appealed after the district court

determined liability but before the district court entered damages. Thus, the

issue of damages is not before us.

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 6 of 17

6 Opinion of the Court 23-12100

jurisdictional question to the parties asking them to address which,

if any, of the district court’s three orders were immediately

appealable. Additionally, with regard to the merits of the appeal,

RFIB asserts four arguments: first, the district court erred by

asserting personal jurisdiction over RFIB; second, the district court

erred by asserting subject matter jurisdiction over this action; third,

the district court erred by concluding that TWC plausibly stated a

claim for breach of contract against RFIB; and fourth, the district

court erred by declining to vacate the entry of default. We address

each of these issues in turn, beginning with our own jurisdiction.

A. We have jurisdiction over this appeal

“Federal courts are courts of limited jurisdiction.” Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, “we

may exercise appellate jurisdiction only where ‘authorized by

Constitution and statute.’” Jenkins v. Prime Ins. Co., 32 F.4th 1343,

1345 (11th Cir. 2022) (quoting Kokkonen, 511 U.S. at 377). The

Constitution provides that “[t]he Judicial Power shall extend . . . to

all Cases of admiralty and maritime Jurisdiction.” U.S. Const., art.

III, § 2, cl. 1. Generally, “[t]he courts of appeals . . . shall have

jurisdiction of appeals from all final decisions of the district courts

of the United States.” 28 U.S.C. § 1291 (emphasis added). But in

admiralty cases, courts of appeals have jurisdiction over appeals

from “[i]nterlocutory decrees of such district courts or the judges

thereof determining the rights and liabilities of the parties . . . .” 28

U.S.C. § 1292(a)(3). Thus, under 28 U.S.C. § 1292(a)(3), we have

jurisdiction over “appeals challenging liability after the court has

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 7 of 17

23-12100 Opinion of the Court 7

made a complete determination of the appellant’s liability vis à vis

the appellee,” even if the district court has yet to determine

damages. Beluga Holding, Ltd. v. Com. Cap. Corp., 212 F.3d 1199,

1203–04 (11th Cir. 2000).

The district court’s third order, which granted in part

TWC’s motion for a default judgment, meets the requirements of

28 U.S.C. § 1292(a)(3). In that order, the district court resolved the

liability issue between the parties. The only remaining question

before the district court was “one of damages.” Thus, the district

court “made a complete determination of [RFIB]’s liability vis à vis

[TWC].” Beluga Holding, Ltd., 212 F.3d at 1203–04. Accordingly,

we have jurisdiction over RFIB’s appeal. See 28 U.S.C. § 1292(a)(3). 4

Neither party argues that we do not have jurisdiction over this

appeal. Satisfied with our own jurisdiction, we next turn to RFIB’s

arguments that the district court lacked personal jurisdiction due

to an alleged defect in service of process and subject matter

jurisdiction based on the contract’s forum selection clause.

4 We need not reach whether the district court’s first two orders, which

declined to vacate the entry of default, are also appealable orders under 28

U.S.C. § 1292(a)(3). We do not reach this question because even if those orders

are not appealable on their own, we have pendent appellate jurisdiction over

those orders. See Smith v. LePage, 834 F.3d 1285, 1292 (11th Cir. 2016)

(“Pendent appellate jurisdiction is proper if the non-appealable matters are

inextricably intertwined with an appealable decision or if review of the former

decision is necessary to ensure meaningful review of the latter.” (quotation

omitted)).

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 8 of 17

8 Opinion of the Court 23-12100

B. RFIB waived its objections to personal jurisdiction

RFIB’s first argument on appeal is that the district court

erred by finding that TWC’s service of process conferred personal

jurisdiction over RFIB. Generally, we review de novo whether a

district court has personal jurisdiction over a defendant. Tufts v.

Hay, 977 F.3d 1204, 1208 (11th Cir. 2020). But “a party’s right to

dispute personal jurisdiction on insufficient service of process

grounds is waived if the party fails to assert that objection in his

first [motion under] Rule 12 [of the Federal Rules of Civil

Procedure], other initial pleading or general appearance.” In re

Worldwide Web Sys., Inc., 328 F.3d 1291, 1299 (11th Cir. 2003). For

example, in Worldwide Web Systems, we held that a defendant

waived his objections to service of process when he moved under

Federal Rule of Civil Procedure 60 for relief from a default

judgment but did not contest service of process or personal

jurisdiction in that motion. See id. at 1300–01.

Here, RFIB challenged the entry of default and the entry of

a default judgment, but RFIB did not contest service of process or

personal jurisdiction in any of its briefs or motions before the

district court. In its briefs and motions, RFIB occasionally cast

aspersions on TWC’s return of service. But a process server’s

return of service is merely evidence of service of process; the return

of service is not service of process itself. See 5B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure Civil § 1353

(4th ed. 2024). Absent a formal challenge to service of process,

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 9 of 17

23-12100 Opinion of the Court 9

RFIB waived its personal jurisdiction argument. See Worldwide Web

Sys., Inc., 328 F.3d at 1299.

C. The policy’s forum selection clause did not divest the district

court of subject matter jurisdiction

Next, RFIB argues that the district court erred by finding

that it had subject matter jurisdiction over this action despite the

policy’s forum selection clause specifying New York as the proper

forum. “Whether a court has subject-matter jurisdiction to hear a

matter is a question of law that we review de novo.” Holston Invs.,

Inc. v. LanLogistics Corp., 677 F.3d 1068, 1070 (11th Cir. 2012).

“Questions of subject matter jurisdiction may be raised at any

time,” including on appeal. Nicklaw v. Citimortgage, Inc., 839 F.3d

998, 1001 (11th Cir. 2016).

As discussed, the Constitution provides that “[t]he Judicial

Power shall extend . . . to all Cases of admiralty and maritime

Jurisdiction.” U.S. Const., art. III, § 2, cl. 1. Congress further

provided that federal district courts “shall have original

jurisdiction, exclusive of the courts of the States,” over “[a]ny civil

case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1).

“Marine insurance contracts qualify as maritime contracts, which

fall within the admiralty jurisdiction of the federal courts and are

governed by maritime law.” GEICO Marine Ins. Co. v. Shackleford,

945 F.3d 1135, 1139 (11th Cir. 2019). “Marine insurance” contracts

include “[c]ommercial insurance [contracts] that protect[] the

insured against loss to a ship, cargo, profits, or liability to others . . .

for a specific vessel during a fixed period.” Marine Insurance, Black’s

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 10 of 17

10 Opinion of the Court 23-12100

Law Dictionary (12th ed. 2024); see, e.g., All Underwriters v. Weisberg,

222 F.3d 1309, 1310, 1312 (11th Cir. 2000) (referring to a policy on

a “32 foot motor vessel” as a “marine insurance contract” and

applying federal maritime law to the dispute).

The policy here insures the M/Y Acqua, a yacht, against

damage. Moreover, the policy declares itself a “Marine Yacht

Insurance” contract. Thus, the policy is a marine insurance

contract. See All Underwriters, 222 F.3d at 1310. Accordingly, the

district court had original subject matter jurisdiction over TWC

and RFIB’s dispute arising out of the policy. See 28 U.S.C. § 1333(1);

GEICO Marine Ins. Co., 945 F.3d at 1139.

RFIB concedes that federal courts have jurisdiction over

maritime cases like this case. Nevertheless, RFIB argues that the

district court did not have subject matter jurisdiction over this

action because of a forum selection clause in the policy.

Specifically, RFIB cites a provision of the policy wherein “each

party agrees to submit to the exclusive jurisdiction of any Court of

competent jurisdiction within New York, United States of

America.” 5 According to RFIB, the phrase “exclusive jurisdiction”

divests any court outside New York of subject matter jurisdiction.

5 The policy’s forum selection clause provides in full: “This (re)insurance shall

be governed by and construed in accordance with the law of New York,

United States of America and each party agrees to submit to the exclusive

jurisdiction of any Court of competent jurisdiction within New York, United

States of America.”

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 11 of 17

23-12100 Opinion of the Court 11

Binding precedent forecloses RFIB’s argument. We have

held that “motions to dismiss based upon forum-selection clauses

ordinarily are not properly brought pursuant to [Federal] Rule [of

Civil Procedure] 12(b)(1).” 6 Lipcon v. Underwriters at Lloyd’s,

London, 148 F.3d 1285, 1289 (11th Cir. 1998). In Lipcon, we rejected

the appellees’ argument to the contrary “because the basis upon

which the defendants seek dismissal—namely, that the agreement

of the parties prohibits the plaintiff from bringing suit in the

particular forum—is unrelated to the actual basis of federal subject

matter jurisdiction.” Id. Rather, we concluded that forum

selection clauses raise issues of improper venue, not subject matter

jurisdiction. Id. at 1290. As discussed, the district court had original

subject matter jurisdiction over this action because TWC asserted

its sole claim under 28 U.S.C. § 1333. The policy’s forum selection

clause did not divest the district court of its original subject matter

jurisdiction. See Lipcon, 148 F.3d at 1289–90 (holding that federal

securities-law claims provided “a sufficient basis for federal subject

matter jurisdiction that is not affected by the parties’ agreement to

litigate elsewhere”). Accordingly, the district court did not err in

finding that it had subject matter jurisdiction over this action. 7

6 Rule 12(b)(1) provides that “[e]very defense to a claim for relief in any

pleading must be asserted in the responsive pleading if one is required. But a

party may assert the following defenses by motion: . . . lack of subject-matter

jurisdiction[.]” Fed. R. Civ. P. 12(b)(1).

7 We conclude that the forum selection clause did not strip the district court

of subject matter jurisdiction over this action. Thus, we also reject RFIB’s

argument that the district court should have transferred the action because the

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 12 of 17

12 Opinion of the Court 23-12100

D. TWC failed to plausibly allege breach of contract against RFIB

RFIB next argues that the district court erred in entering a

default judgment based on its determination that, in light of the

pleadings, TWC had a contract with RFIB that RFIB breached. We

review a decision to grant or deny a motion for default judgment

for abuse of discretion. Wahl v. McIver, 773 F.2d 1169, 1174 (11th

Cir. 1985). “A district court abuses its discretion ‘if it applies an

incorrect legal standard, applies the law in an unreasonable or

incorrect manner, follows improper procedures in making a

determination, or makes findings of fact that are clearly

erroneous.’” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068

(11th Cir. 2014) (quoting Brown v. Ala. Dep’t of Transp., 597 F.3d

1160, 1173 (11th Cir. 2010)).

“[A] defaulted defendant is deemed to admit the plaintiff’s

well-pleaded allegations of fact, [but the defendant] is not held to

admit facts that are not well-pleaded or to admit conclusions of

law.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th

Cir. 2015) (quotation omitted). Thus, “[e]ntry of default judgment

is only warranted when there is ‘a sufficient basis in the pleadings

for the judgment entered.’” Id. (quoting Nishimatsu Constr. Co. v.

Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). 8 A

forum selection clause deprived the district court of subject matter

jurisdiction.

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

Court adopted as binding precedent all decisions of the former Fifth Circuit

issued before October 1, 1981.

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 13 of 17

23-12100 Opinion of the Court 13

“‘sufficient basis’ for the judgment” is “akin to that necessary to

survive a motion to dismiss for failure to state a claim.” Id. Thus,

a “motion for default judgment is like a reverse motion to dismiss

for failure to state a claim.” Id. And to survive a motion to dismiss

for failure to state a claim, the “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

District courts may consider exhibits attached to a complaint when

ruling on a motion to dismiss. Hoefling v. City of Miami, 811 F.3d

1271, 1277 (11th Cir. 2016). “[I]f the allegations of the complaint

about a particular exhibit conflict with the contents of the exhibit

itself, the exhibit controls.” Id.

TWC’s complaint asserts one claim for breach of a marine

insurance contract. To state a claim for breach of contract under

admiralty law, TWC must plausibly allege “(1) the terms of a

maritime contract; (2) that the contract was breached; and (3) the

reasonable value of the purported damages.” Sweet Pea Marine, Ltd.

v. APJ Marine, Inc., 411 F.3d 1242, 1249 (11th Cir. 2005). TWC

attached the insurance policy to its complaint, satisfying the first

element. The district court has yet to determine damages, so the

third element is not before us. Accordingly, our review turns on

the second element.

TWC alleged, and the district court accepted as true, that

TWC had a marine insurance contract with RFIB that RFIB

breached by failing to investigate, respond to, and indemnify losses

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 14 of 17

14 Opinion of the Court 23-12100

that TWC asserted. These allegations (and by extension, the

district court’s conclusions) contradict the express terms of the

policy that TWC attached to the complaint. See Hoefling, 811 F.3d

at 1277. The policy provides that RFIB is “Lloyd’s Broker.”9 In

contrast, the insurers 10 who underwrote liability for the policy

were Lloyd’s Syndicate BRT 2987, Lloyd’s Syndicate MRS 0457,

and Lloyd’s Syndicate CHN 2015. The policy states that a

“(re)insurer,” not the broker, “is liable . . . for the proportion of

liability it has underwritten.” Moreover, the policy explicitly

differentiates between the insurers and the broker in certain

provisions.11 For example, one provision states that “RFIB should

be in receipt of cleared funds within 50 days of the above

mentioned due date(s)” so that “RFIB Group Limited has adequate

time to satisfy Insurers premium settlement terms.” Additionally,

9 A “broker” is someone “who is engaged for another, usu[ally] on a

commission, to negotiate contracts relating to property in which he or she has

no custodial or proprietary interest” or an “agent who acts as an intermediary

or negotiator, esp[ecially] between prospective buyers and sellers; a person

employed to make bargains and contracts between other persons in matters

of trade, commerce, or navigation.” Broker, Black’s Law Dictionary (12th ed.

2024).

10 An “insurer” is someone “who underwrites insurance policies and issues

them to insureds; esp[ecially] a company or association that undertakes to

indemnify against losses and to perform other insurance-related functions.”

Insurer, Black’s Law Dictionary (12th ed. 2024).

11 Although the policy mentions some of RFIB’s obligations, none of those

obligations require RFIB to “fully investigate and respond to” TWC’s “losses

and damages to the vessel” or “indemnify” TWC for those losses, as TWC

alleges.

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 15 of 17

23-12100 Opinion of the Court 15

in a section titled “BROKER’S CANCELLATION CLAUSE,” the

policy provides that that “(Re)Insurers hereby agree to cancel and

return to RFIB Group Limited any premium that may have been

then already received by (Re)Insurers in excess of pro rata premium

up to cancelling date.” These provisions further demonstrate the

differences between RFIB’s and the insurers’ contractual

obligations. In sum, the policy makes clear that RFIB is a broker,

not an insurer; thus, RFIB cannot breach the policy in the manner

that TWC alleged.

The district court did not apply Twombly and Iqbal’s pleading

standard to TWC’s complaint. See Iqbal, 556 U.S. at 678 (The

“complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” (quoting

Twombly, 550 U.S. at 570)). Failure to do so was an abuse of

discretion. See Surtain, 789 F.3d at 1245. Moreover, the district

court implicitly construed the policy to render RFIB a liable

insurer. That construction is an error of law, which is also an abuse

of discretion. See Baldwin v. Express Oil Change, LLC, 87 F.4th 1292,

1301 (11th Cir. 2023) (“An error of law is an abuse of discretion per

se.” (quotation omitted)); Tech. Coating Applicators, Inc. v. U.S. Fid.

& Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998) (“[C]onstruction of

an insurance contract . . . is a question of law and is subject to de

novo review.”). Accordingly, we vacate the district court’s order

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 16 of 17

16 Opinion of the Court 23-12100

and remand with instructions to dismiss TWC’s complaint for

failure to state a claim upon which relief can be granted. 12

In opposition to this conclusion, TWC contends that the

policy is ambiguous as to the identity of its insurer(s). We disagree.

As discussed, the policy unambiguously designates RFIB as a

broker, not an insurer. In contrast, the policy unambiguously lists

three Lloyd’s Syndicates as the policy’s insurers. Since RFIB is not

one of the policy’s insurers or underwriters, RFIB cannot be liable

for breaching the policy in the manner that TWC alleges.

TWC also argues that the district court did not abuse its

discretion by denying RFIB’s motion for reconsideration when

RFIB raised its “[b]roker status” argument in that motion but not

in its initial motion to vacate the entry of default. TWC’s argument

misses the mark. RFIB argued to the district court that the district

court could not enter default judgment in favor of TWC because

TWC failed to state a breach of contract claim against RFIB. RFIB’s

argument turned on RFIB’s assertion that it was not an “insurer”

that could be liable for indemnification under the policy. The

district court had to consider whether TWC plausibly stated a

12 Because we direct the district court to dismiss without prejudice TWC’s

complaint, we do not reach RFIB’s fourth ground for appeal concerning the

district court’s determination that RFIB failed to demonstrate good cause for

vacating the entry of default. TWC’s complaint will no longer present “a live

controversy with respect to which [we] can give meaningful relief.” Frulla v.

CRA Holdings, Inc., 543 F.3d 1247, 1251 (11th Cir. 2008) (quotation omitted).

Thus, the entry of default, which establishes RFIB’s admission to the well-

pleaded allegations of TWC’s complaint, will also be moot.

USCA11 Case: 23-12100 Document: 28-1 Date Filed: 11/07/2024 Page: 17 of 17

23-12100 Opinion of the Court 17

claim for breach of contract before entering a default judgment.

See Surtain, 789 F.3d at 1245. The district court did not do so.

Accordingly, the district court abused its discretion by granting in

part TWC’s motion for a default judgment as to liability. Thus, we

vacate the district court’s order and remand with instructions to

dismiss TWC’s complaint for failure to state a claim.

* * *

In sum, we VACATE the district court’s order granting in

part TWC’s motion for a default judgment and REMAND WITH

INSTRUCTIONS to dismiss without prejudice TWC’s complaint.

VACATED AND REMANDED.