Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

BMO BANK, N.A., )

)

Plaintiff, )

)

v. ) CASE NO. 3:25-cv-294-ECM

) [WO]

GILMORE TRUCKING LLC, et al., )

)

)

Defendants. )

MEMORANDUM OPINION and ORDER

On April 17, 2025, BMO Bank, N.A. (“BMO”) sued Gilmore Trucking LLC

(“GT”) and Willie Gilmore (“Gilmore”) (collectively, the “Defendants”) for defaulting

on three purchase-money loans for four flatbed trailers (the “Collateral”).1 (See doc. 1 at

2–7, paras. 9–43).2

BMO brings two causes of action: breach of contract against GT (Count IV) and

breach of guaranty against Gilmore (Count V).3 (Id. at 11–12, paras. 72–88). On these

claims, BMO seeks an order that: (1) enjoins GT and “other persons and firms having

knowledge of the injunction” from further use of the remaining trailer (the “Retained

Collateral”) and requires the disclosure of its location; (2) compels specific performance

1 BMO has recovered three of the trailers, two during the pendency of this suit. (Doc. 1 at 6, para. 34; doc.

13-1 at 7, para. 28).

2 For clarity, the Court refers to the document and page numbers generated by CM/ECF.

3 Though styled as causes of action, “Injunctive Relief” (Count I), “Specific Performance” (Count II), and

“Writ of Replevin” (Count III) are certain remedies BMO seeks for breach of contract and breach of

guaranty. (See doc. 1 at 8–11, paras. 44–71; doc. 13 at 2–3).

of GT’s contractual obligations; (3) awards damages for GT’s breach of contract and

Gilmore’s breach of guaranty; (4) grants BMO possession of the Retained Collateral via a

writ of replevin; and (5) awards interest, costs, and attorney fees. (Id. at 12–13).

Following proper service on April 22, 2025 (docs. 6–7), the Defendants failed to

plead or otherwise defend. Consequently, on May 29, 2025, BMO filed an application

for a Clerk’s entry of default against the Defendants. (Doc. 8). The Clerk of the Court

entered default, (doc. 9), and BMO moved for default judgment, (doc. 10). The Court

denied that motion because BMO “failed to set forth the elements for any of its claims

and to demonstrate how the well-plead allegations in the complaint establish each

element.” (Doc. 12 at 4). The Court further required, in any new motion for default

judgment, that BMO

shall specifically address: (1) upon which claims it seeks

judgment; (2) the applicable substantive law supporting each

claim (as to each defendant); (3) the elements under which

default judgment is sought; (4) the specific, well-plead facts

in the complaint that satisfy each element; (5) the connection

of any requested damages (including costs, attorney fees, and

interest) or other relief to specific claims; (6) the authority

supporting those damages or other relief; and (7) the evidence

in support of its damages figures or calculations.

Id. at 4–5 (emphasis in original).

On December 15, 2025, BMO renewed its motion for default judgment. (Doc. 13).

Therein, BMO seeks default judgment against GT on the breach for contract claim and

against Gilmore for the breach of guaranty claim. (Id. at 3). BMO seeks all five of the

remedies mentioned above. (Id. at 2–3). Because a writ of replevin is a prejudgment

order, the Court construes BMO’s motion for default judgment as including an

application for a writ of replevin to secure potential judgment.

After careful review of BMO’s motion and briefing, and for the reasons that

follow, the construed application for a writ of replevin to secure potential judgment is due

to be DENIED, and the motion for default judgment against the Defendants is due to be

GRANTED in part and DENIED in part.

I. JURISDICTION AND VENUE

The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.

§ 1332. Personal jurisdiction and venue are uncontested, and the Court concludes that

venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

II. LEGAL STANDARD

A default judgment may be entered when a defendant “has failed to plead or

otherwise defend.” FED. R. CIV. P. 55(a). While the Eleventh Circuit has a “strong policy

of determining cases on their merits” and “therefore view[s] defaults with disfavor,” In re

Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003), it is well-settled that a

“district court has the authority to enter default judgment for failure . . . to comply with

its orders or rules of procedure.” Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985).

“When a defendant defaults, he ‘admits the plaintiff’s well-pleaded allegations of

fact.’” Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th Cir. 2015) (quoting Lary v. Trinity

Physician Fin. & Ins. Servs., 780 F.3d 1101, 1106 (11th Cir. 2015)). And the standard

for default judgment is “akin to that necessary to survive a motion to dismiss for failure

to state a claim.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir.

2015) (citation omitted). Therefore, “[t]he allegations must be well-pleaded in order to

provide a sufficient basis for the judgment entered.” De Lotta v. Dezenzo’s Italian Rest.,

Inc., 2009 WL 4349806, at *1 (M.D. Fla. 2009) (citing Eagle Hosp. Physicians, LLC v.

SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009)).4 A complaint is “well-

pleaded” when it satisfies the requirements set out in Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007). Specifically, “the factual allegations must be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555. “[A] formulaic recitation

of the elements of a cause of action will not do.” Id.

Even where a plaintiff satisfies the pleading requirements, “the Court [still must]

determine[] the amount and character of damages to be awarded.” Miller v. Paradise of

Port Richey, Inc., 75 F. Supp. 2d 1342, 1346 (M.D. Fla. 1999). The court may—but is

not required to—hold a hearing before entering an award for damages with a default

judgment. See Giovanno, 804 F.3d at 1366 (“Given its permissive language, Rule

55(b)(2) does not require a damages hearing in every case.”). But “[d]amages may be

awarded without an evidentiary hearing ‘only if the record adequately reflects the basis

for award via . . . a demonstration by detailed affidavits establishing the necessary facts.’”

Robbie’s of Key West v. M/V Komedy III, 470 F. Supp. 3d 1264, 1268 (S.D. Fla. 2020)

(second alteration in original) (quoting Adolph Coors Co. v. Movement Against Racism &

Klan, 777 F.2d 1538, 1544 (11th Cir. 1985)).

4 Here and elsewhere, the Court cites to nonbinding authority. While the Court recognizes that these

cases are not precedential, the Court finds them persuasive.

III. FACTS5

Over the course of about a year, BMO and GT made three agreements for the

financing of four flatbed trailers. On May 4, 2021, GT entered into a loan and security

agreement with BMO. (Doc. 1 at 2, para. 10; doc. 1-1). Therein, GT agreed to repay the

loan with fees and interest in exchange for financing two flatbed trailers. (Doc. 1 at 2–3,

para. 10; doc. 1-1 at 2). The trailers acted as collateral under the agreement. (Doc. 1 at 3,

para. 11; doc. 1-1 at 3, para. 2.1). GT began making monthly payments as agreed. (Doc.

1 at 3, para. 11).

Then, GT needed another trailer. On May 19, 2022, BMO and GT entered into a

second loan and security agreement. (Doc. 1 at 3, para. 12; doc. 1-2). Like the first

agreement, GT agreed to repay the loan with fees and interest in return for the financing

of an additional trailer. (Doc. 1 at 3, para. 12; doc. 1-2 at 2). That trailer also acted as

collateral. (Doc. 1 at 3, paras. 12–13; doc. 1-2 at 3, para. 2.1). GT began making monthly

payments on the additional trailer as agreed. (Doc. 1 at 3, para. 13).

And then another. On May 27, 2022, BMO and GT entered into a third loan and

security agreement. (Doc. 1 at 3, para. 14; doc. 1-3). Like the other agreements, GT

agreed to repay the loan with fees and interest in return for financing an additional trailer.

(Doc. 1 at 3, para. 14; doc. 1-3 at 2). BMO financed this fourth trailer, which also acted

5 This recitation of facts is based on the well-plead factual allegations in the complaint, admitted by the

Defendants for default judgment purposes. Giovanno, 804 F.3d at 1366. The Court also reviewed the

exhibits attached to the complaint, (docs. 1-1, 1-2, 1-3, 1-4, 1-5, 1-6). Nationstar Mortgage, LLC v.

Holliday, 2023 WL 2777943, at *1 (N.D. Ala. 2023) (“Attachments to a complaint are ‘part of the

pleading for all purposes.’”) (quoting FED R. CIV. P. 10(c)). The Court also considers the motion for

default judgment and its attached declaration with sources (docs. 13, 13-1). See Ala. Treatment, LLC v.

as collateral. (Doc. 1 at 4, para. 15; doc. 1-3, at 3, para. 2.1). GT began making payments

on the trailer as agreed. (Doc. 1 at 4, para. 15). BMO retained the title certificates to the

Collateral and recorded its interest in each trailer as first lienholder. (Id. at 4, para. 19;

doc. 1-4).

Contemporaneously with each of BMO and GT’s agreements, Gilmore, GT’s sole

member, signed guaranties of performance by GT under the agreements. (Doc. 1 at 1, 4

para. 2, 4). Under the guaranties, Gilmore agreed to make payments in the event of

nonpayment by GT under the loan agreements. (Id. at 5, para. 25; see generally doc. 1-5).

However, GT defaulted on each of the three loan agreements on March 4, 2025,

November 1, 2024, and January 1, 2025, respectively. (Doc. 1 at 5, paras. 22–23).

Gilmore failed to make any payments to cover the defaults. (Id. at 5, para. 25). As a

result, on March 20, 2025, BMO accelerated the balance due under the loan agreements

with GT. (Id. at 6, para. 26). On March 24, 2025, BMO mailed a demand to GT and

Gilmore for payment. (Id. at 6, para. 33; doc. 1-6 at 2, 4).

Before filing this action, BMO repossessed the trailer financed under the second

agreement. (Doc. 1 at 6, para. 34). Before filing its renewed motion, BMO was also able

to repossess both trailers purchased with the loan under the first agreement. (See doc. 13-

1 at 7, para. 28). To date, GT and Gilmore have not paid the balance or returned the

remaining trailer (the “Retained Collateral”). (See doc. 1 at 7, paras. 38–39).

Waste All., Inc., 533 F. Supp. 3d 1082, 1087 (M.D. Ala. 2020) (“Besides the pleadings, a court may also

consider evidence presented in the form of an affidavit or declaration.” (citation omitted)).

IV. DISCUSSION

A. Breach of Contract

“A federal court sitting in diversity will apply the conflict-of-laws rules of the

forum state.” Grupo Televisa, S.A. v. Telemundo Commc’ns Grp., Inc., 485 F.3d 1233,

1240 (11th Cir. 2007). “[T]he court must characterize the legal issue” and “determine[]

the choice of law rule that the forum state applies to that particular type of issue.” Id.

Here, BMO alleges breach of contract. In contractual disputes, Alabama law requires the

Court to “look to the contract to determine whether the parties have specified a particular

sovereign’s law to govern.” Stovall v. Universal Constr. Co., 893 So. 2d 1090, 1102 (Ala.

2004).

Here, each of GT and BMO’s three agreements specifies that “all credit or other

financial accommodations extended by [BMO] under this Agreement shall be deemed

extended from and subject to the laws of the State of Illinois . . . regardless of the location

of [GT] or any of the Equipment.” (Doc. 1-1 at 5, para. 7.6; doc. 1-2 at 5, para. 7.6; doc.

1-3 at 5, para. 7.6). Accordingly, the Court applies Illinois law.6

BMO argues it had three express contracts with GT. (See doc. 13 at 5). “The

required elements of a breach of contract claim in Illinois are the standard ones of

common law: ‘(1) offer and acceptance, (2) consideration, (3) definite and certain terms,

(4) performance by the plaintiff of all required conditions, (5) breach, and (6) damages.’”

6 The Court finds that applying Illinois law to the contracts and guaranties in this case would not be

contrary to Alabama public policy. See Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 507 (Ala.

1991).

Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 560 (7th Cir. 2012) (citing Ass’n Benefit

Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007)).

“[A]n offer is an act on the part of one person whereby he gives to another the

legal power of creating the obligation called contract [by acceptance].” McCarty v.

Verson Allsteel Press Co., 411 N.E.2d 936, 942 (Ill. App. 1980) (citations omitted).

Here, the admitted facts indicate that each of the loan and security agreements clearly

specifies GT’s obligations and liabilities to BMO in return for collateral which was

affirmed delivered in satisfactory condition by both BMO and Gilmore. (See doc. 1-1 at

6; doc. 1-2 at 7; doc. 1-3 at 7). Accordingly, there was an offer and acceptance of each

contract.

“Consideration consists of some detriment to the offeror, some benefit to the

offeree, or some bargained-for exchange between them.” Urb. Sites of Chi., LLC v.

Crown Castle USA, 979 N.E.2d 480, 493 (Ill. App. 2012) (citation omitted). “Any act or

promise which is of benefit to one party or disadvantage to the other is a sufficient

consideration to support a contract.” Steinberg v. Chi. Med. Sch., 371 N.E.2d 634, 639

(Ill. 1977) (citing Green v. Ashland Sixty-Third State Bank, 178 N.E. 468, 470 (1931)).

Here, BMO, offeror, loaned GT, offeree, money in return for payment with interest and a

secured interest in the Collateral purchased with the loan. This constituted a bargained-

for exchange of benefits and detriments. Accordingly, there was sufficient consideration

for each contract.

“[A] contract ‘is sufficiently definite and certain to be enforceable if the court is

enabled from the terms and provisions thereof, under proper rules of construction and

applicable principles of equity, to ascertain what the parties have agreed to do.’” Midland

Hotel Corp. v. Reuben H. Donnelley Corp., 515 N.E.2d 61, 65 (Ill. 1987) (quoting Morey

v. Hoffman, 145 N.E.2d 644, 647–48 (Ill. 1957)). The admitted facts indicate—and the

contracts themselves confirm—that BMO and GT agreed to exchange a loan in return for

payment with well-defined terms of interest and a secured interest in the collateral

purchased with the loan. Accordingly, because the Court can easily “ascertain what the

parties have agreed to do,” the terms of the contract are clearly sufficiently definite and

certain under Illinois law. See id.

BMO performed all required conditions of each contract by financing the trailers.

The Defendants breached by failing to continually make timely payments in accordance

with the contracts. BMO suffered damages from nonpayment of amounts owed by GT.

Therefore, BMO has established its breach of contract claim against GT, and the motion

is due to be GRANTED as to Count IV.

B. Breach of Guaranty

“Because a guaranty is a contractual obligation, a breach of guaranty claim is

governed by the same principles as a breach of contract claim.” Amos Fin., LLC v.

Szydlowski, 214 N.E.3d 158, 166 (Ill. App. 2022) (citation omitted). The guaranties

between Gilmore and BMO likewise specify that Illinois law governs. (See doc. 1-5 at 2–

4 (Three separate guaranties, each stating, “This Guaranty is subject to and governed by

the laws of the State of Illinois . . . regardless of the location of [BMO] or [GT].”)).

Therefore, the Court applies Illinois law to this claim as well.

The admitted facts demonstrate that Gilmore “guaranteed the full and timely

performance of [GT]” on each of the three loan agreements in three separate guaranties

with Plaintiff—entered into on May 4, 2021, May 19, 2022, and May 27, 2022,

respectively. (Doc. 1 at 4, para. 20). The signed agreements manifested the offer and

assent to each. (See doc. 1-5 at 2–4).

“Typically, the consideration supporting the underlying obligation will also

support the guaranty.” Tower Inv’rs, LLC v. 111 E. Chestnut Consultants, Inc., 864

N.E.2d 927, 937 (Ill. App. 2007). “However, where the guaranty is executed after the

underlying obligation has been entered into, new consideration becomes necessary to

support it.” Id. (emphasis added) (citing City Nat’l Bank of Hoopeston v. Russell, 615

N.E.2d 1308, 1312 (Ill. App. 1993)). Here, each of the guaranties was signed on the

same day as the contracts between BMO and GT and concern those very contracts.

(Compare doc. 1 at 2–3, paras. 10, 12, 14 with id. at 4, para. 20). Accordingly, there was

adequate consideration for the guaranties.

BMO performed its obligations under the guaranties by financing the trailers for

GT. (See doc. 1-5 at 2–4 (Three separate guaranties, each stating a guarantee by Gilmore

concerning “[v]aluable [c]onsideration, the receipt and sufficiency which is hereby

acknowledged” with GT to “promptly and fully perform, pay[,] and discharge all of its

present and future liabilities . . . to [BMO]”)). Gilmore breached his obligation by

“fail[ing] to make payments when they became due.” (Doc. 1 at 5, para. 25). As with the

breach of contract by GT, BMO suffered damages from nonpayment of amounts owed by

Gilmore. Therefore, BMO has established its breach of guaranty claim against Gilmore

and the motion is due to be GRANTED as to Count V.

V. REQUESTED RELIEF

A. Writ of Replevin

BMO seeks a writ of replevin against GT. (Doc. 1 at 10–11, paras. 63–71; doc. 13

at 15–17). Per Federal Rule of Civil Procedure 64(a), “throughout an action, every

remedy is available that, under the law of the state where the court is located, provides for

seizing a person or property to secure satisfaction of the potential judgment.” FED. R.

CIV. P. 64(a); see also Granny Goose Foods, Inc. v. Bhd. of Teamsters and Auto Truck

Drivers Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 436 n.10 (1974) (citing id.) (“[I]n

all cases in federal court, . . . state law is incorporated to determine the availability of

prejudgment remedies for the seizure of person or property to secure satisfaction of the

judgment ultimately entered.”).

Among those prejudgment remedies expressly considered in Rule 64 is replevin.

See FED. R. CIV. P. 64(b). Replevin is “[a] writ obtained from a court authorizing the

retaking of personal property wrongfully taken or detained.” Replevin, BLACK’S LAW

DICTIONARY (12th ed. 2024); cf. Hepburn & Dundas’ Heirs v. Dunlop & Co., 14 U.S.

179, 203 n.d (1816) (explaining replevin as an “action . . . where the thing sued for is

specifically recovered.”).

Alabama Rule of Civil Procedure 64 provides that a writ of replevin shall be

issued after a plaintiff satisfies a host of procedural requirements. First, a plaintiff must

file an affidavit based on personal knowledge containing the following information:

(A) Description of Property. A description of the claimed

property that is sufficient to identify the property and its

location.

(B) Statement of Title or Right. A statement that the plaintiff

is the owner of the claimed property or is entitled to

possession of it, describing the source of such title or right

and, if the plaintiff’s interest in such property is based on a

written instrument, a copy of said instrument must be

attached to the affidavit.

(C) Statement of Wrongful Detention. A statement of specific

facts which show that the property is wrongfully detained by

the defendant and a statement of the cause of such detention

according to the best knowledge, information and belief of

the plaintiff.

(D) Statement of Risk of Injury. A statement of specific facts

in support of the contention, if any, that there is risk of

concealment, transfer or other disposition of or damage to the

property to the injury of the plaintiff.

ALA. R. CIV. P. 64(b)(1). Upon the filing of such affidavit, the Court is to, “without

delay, . . . examine the complaint, the application and supporting affidavit and its

attachments and any further showing offered by the plaintiff in support of the plaintiff’s

right to the immediate possession of the property.” Id. at (b)(2)(A).

However, a writ of replevin cannot be granted merely upon the filing of such

affidavit. When “the owner of a security interest in personal property seeks to recover

specific personal property prior to judgment, the requirements of [Alabama Rule 64] are

superimposed over the statutory procedure that otherwise exists in such cases.” See ALA.

R. CIV. P. 64 committee’s notes to 1973 adoption (emphasis added). “Thus, the

provisions for pre-judgment seizure that have long been found in the [Alabama] Code

still apply . . . .” Id. Among the procedural requirements not duplicative of Rule 64(b) is

the requirement that plaintiffs must provide a bond. See Ala. Code §§ 6-6-250; ALA. R.

CIV. P. 64 committee’s notes to 1973 adoption (“[T]he requirement of posting a bond as a

necessary step in obtaining pre-judgment seizure . . . remains in effect but subject to the

further requirements of [Alabama Rule] 64(b) in the area of affidavit and proceedings

thereon.”).

Here, BMO rightfully acknowledges that Alabama law governs the issuance of a

writ of replevin. (See doc. 13 at 15–16). Nonetheless, BMO does not relate in its

construed application for a writ of replevin that it has filed an affidavit for such writ

pursuant to Alabama Rule 64.7 Nor has it filed a bond. Nor has it indicated how it has

attempted to meet any other procedural protections contained in the Alabama Code—

which Alabama Rule 64 supplements, not supplants. Moreover, a writ of replevin is a

prejudgment remedy; this case is in a final judgment posture. For these reasons, the

Court finds the construed application for a writ of replevin (styled as Count III) is due to

be DENIED.

B. Equitable Remedies

For breach of contract, BMO seeks an order that: (1) enjoins GT and “other

persons and firms having knowledge of the injunction” from further use of the collateral,

from restricting BMO’s access to the collateral, and requiring the disclosure of the

collateral’s location; and (2) compels specific performance of GT’s obligations under its

7 BMO attached to its construed application a declaration of Nolan Broadie, litigation specialist for BMO,

(see doc. 13-1 at 2–9), which it cites in its argument for the writ. (Doc. 13 at 16–17). Because the Court

does not find a writ of replevin appropriate in this posture and without the satisfaction of other Alabama

procedural requirements, the Court pretermits discussion of whether his affidavit satisfies Alabama

Rule 64.

contracts with BMO and “to return and allow removal of the Retained Collateral.” (See

doc. 1 at 12–13).

Illinois law,8 however, generally prohibits injunctive remedies where relief is

available through money damages. See Lumbermen’s Mut. Cas. Co. v. Sykes, 890 N.E.2d

1086, 1106 (Ill. App. 2008) (citation omitted) (“It is a well-established rule that, if a

party’s injury can be adequately compensated through money damages, then it has an

adequate remedy at law and does not need the extraordinary remedy of injunctive

relief.”). “It is only when money is insufficient to compensate the injury, or when the

injury cannot be properly quantified in terms of money, that injunctive relief is

necessary.” Id. at 1106–07 (citation omitted). Because the injury in this case is purely

monetary and compensable by money damages, the Court finds the motion for default

judgment due to be DENIED as to injunctive relief (styled as Count I).

Likewise, specific performance is unavailable “where there is an adequate remedy

at law, such as money damages, unless there is some element or feature to show that the

relief at law might not be adequate, such as where the measure of damages resulting from

non-performance of the agreement is uncertain or difficult to ascertain.” Est. of Johnson,

350 N.E.2d 310, 316 (Ill. App. 1976) (citation omitted). Moreover, “[s]ince personal

property is ordinarily not unique, contracts relating solely to personal property will not be

8 BMO incorrectly cites Alabama law for the standards for relief under a contract governed by Illinois

law. See discussion supra Part IV(A) (finding that Illinois law applies). In any event, the result under

Alabama law here is the same. See Slamen v. Slamen, 254 So. 3d 172, 176 (Ala. 2017) (“[The plaintiff’s]

mere allegation that, without the injunction, the defendants might be unable to satisfy a potential

judgment remedying his alleged monetary loss does not transform his injury into an irreparable one that

justifies injunctive relief.”); Grayson v. Boyette, 451 So. 2d 798, 800 (Ala. 1984) (“Ordinarily, a court

specifically enforced unless the property involved has some intrinsic or special value to

the complainant.” Id. (citing Cohn v. Mitchell, 3 N.E. 420, 423 (Ill. 1885)).

Again, the damages here are calculable in plain monetary terms as principal plus

interest, and the collateral has no value to BMO beyond its use as security for the loan.

In addition, “[w]hile a plaintiff may pursue a remedy at law for damages and alternatively

seek specific performance of the contract, . . . . Plaintiff cannot affirm the contract, obtain

specific performance and, in essence, erase the breach, yet also seek damages at law for

breach of contract.” Cf. Douglas Theater Corp. v. Chi. Title & Tr. Co., 681 N.E.2d 564,

569 (1997). Allowing such would endorse “double recovery” plainly prohibited by

Illinois law and broader remedies jurisprudence. See ICD Publ’ns, Inc. v. Gittlitz, 24

N.E.3d 898, 920 (Ill. App. 2014) (citation omitted); see also, e.g., Kruse v. Mass. Mut.

Life Ins. Co., 2017 WL 3494334, at *8 (S.D. Fla. 2017) (dismissing claim for specific

performance as “redundant” and “duplicative” of damages for breach of contract).

Accordingly, the Court finds the motion for default judgment due to be DENIED as to

specific performance (styled as Count II).

C. Monetary Relief

BMO also seeks damages, pre- and post-judgment interest, attorney fees, and

costs. In the Court’s Order denying the previous motion for default judgment, the Court

stated that Plaintiff, in any new motion, “shall specifically address: the connection of any

requested damages (including costs, attorney fees, and interest) or relief to specific

will not order specific performance of a contract relating to personalty [(moveable property)], because

there is an adequate remedy at law.”).

claims; the authority supporting those damages . . . and the evidence in support of its

damages figures or calculations.” (Doc. 12 at 5 (numerals omitted)). In its renewed

motion, BMO has connected its damages to the breach of contract and breach of guaranty

claims (doc. 13 at 9) and provided evidence in support of its damages and interest

calculations (id. at 9; see generally doc. 13-1). However, BMO has not provided

authority for the Court to award the damages and interest under Illinois law.

BMO has also not provided an accounting of its attorney fees and costs, despite

requesting an award of those undefined amounts. See PNCEF, LLC v. Hendricks Bldg.

Supply LLC, 740 F. Supp. 2d 1287, 1294 (S.D. Ala. 2010) (“Rather than merely telling

the Court in summary fashion what its damages are, a plaintiff seeking default judgment

must show the Court what those damages are, how they are calculated, and where they

come from . . . .” (emphasis in original)).

Moreover, BMO separately requests the amounts of attorney fees and costs be

addressed later, after BMO recovers the Retained Collateral. (See doc. 13 at 10). Such

would require the staying of Federal Rule of Civil Procedure 54(d)’s requirement for the

filing of a post-judgment motion for attorney fees within fifteen days of any final

judgment. Moreover, BMO has stated that it is “in the process of determining the best

means of mitigating its damages through the sale or other disposition of the Recovered

Collateral.” (Id. at 9 n.4). As a practical matter, were the Court to award damages before

BMO mitigates its damages by the sale of the three flatbeds it has already repossessed

and the one it anticipates repossessing, the Court would have to later reduce any award to

account for such mitigation.

Accordingly, in the interest of avoiding later recalculation, allowing BMO to

accurately assess costs and attorney fees at the time of an award, and requiring

compliance with this Court’s earlier Order, (see doc. 12 at 5), the Court declines to award

damages, pre- and post-judgment interest, attorney fees, and costs at the present time.

Accordingly, the Court finds the motion for default judgment due to be DENIED without

prejudice as to damages.

VI. CONCLUSION

Accordingly, and for good cause, it is

ORDERED as follows:

1. BMO’s amended motion for default judgment (doc. 13) is GRANTED in

part and DENIED in part as follows:

a. The motion is GRANTED as to the breach of contract claim against

GT (Count IV) and the breach of guaranty claim against Gilmore (Count V). Any future

motion need not address these claims.

b. The motion is DENIED as to injunctive relief (Count I) and specific

performance (Count II). Any further motion should not address these claims without

good cause.

c. The motion is DENIED as to damages, pre- and post-judgment

interest, attorney fees, and costs. Any future motion should address the deficiencies

discussed herein. See discussion supra Part V(C).

2. BMO’s construed application for a writ of replevin (Count III) (doc. 13) is

DENIED.

DONE this 9th day of April, 2026.

/s/ Emily C. Marks

EMILY C. MARKS

UNITED STATES DISTRICT JUDGE