Pablo Dario Castillo v. Fernando Colmenares
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 20, 2026
Docket25-13815
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-13815
Non-Argument Calendar
____________________
PABLO DARIO CASTILLO,
an individual,
Plaintiff-Counter Defendant-Appellee,
versus
FERNANDO COLMENARES,
an individual,
Defendant-Counter Claimant-Appellant,
NEW MIAMI HABITAT LLC, et al.,
Counter Defendants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-24221-JAL
____________________
Before WILLIAM PRYOR, Chief Judge, and ABUDU and ANDERSON,
Circuit Judges.
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2 Opinion of the Court 25-13815
PER CURIAM:
Fernando Colmenares appeals pro se the default judgment
against him and the denial of his motion to amend or alter that
judgment. We affirm.
In December 2021, Pablo Castillo, a citizen of Argentina,
sued Colmenares, a Florida citizen, for breach of fiduciary duty,
conversion, and constructive trust. Castillo alleged that Colmena-
res purported to be in the real estate business and offered to help
him invest in Florida properties. Colmenares convinced Castillo to
use a Delaware limited liability company to hold his real estate in-
vestments in Florida, as well as other capital contributions, and told
Castillo that a domestic resident must be a manager of the com-
pany. Colmenares convinced Castillo to designate Colmenares as a
member and manager of the company. Castillo believed that he
was the sole owner of the company but later discovered that Col-
menares had been holding himself out as sole owner and stealing
assets from the company.
Colmenares filed an untimely motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) on the
ground that Castillo’s complaint failed to allege essential require-
ments to bring a direct or derivative claim under federal law. Col-
menares also moved to dismiss the complaint for failure to satisfy
the amount in controversy necessary for jurisdiction based on di-
versity of citizenship. 28 U.S.C. § 1332. The district court denied
both motions, and Colmenares moved for reconsideration under
Rule 59(e), which the district court also denied.
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After Colmenares failed to appear at a pretrial conference,
the district court granted Castillo a default judgment based on Col-
menares’s “pattern of willful, bad faith, and dilatory behavior
throughout this case.” It explained that it had authority to impose
sanctions on a party that does not appear at a pretrial conference
under Rule 16, and that under Rule 37, those sanctions may include
the entry of default judgment under Rule 55. It ordered Castillo to
file a motion of default judgment stating the factual, evidentiary,
and legal bases for his claims. Castillo filed his motion, to which
Colmenares responded in opposition, and Castillo later supple-
mented with affidavits and other documents, including deeds for
several real properties. Castillo alleged that Colmenares sold his
properties for $145,000, $145,000, and $195,000, and diverted
$113,734.95 in cash with the intent to purchase a fourth property,
for a total of $598,734.95.
The district court granted Castillo’s motion in part and de-
nied it in part before Colmenares could respond. It stated that Col-
menares had only responded to Castillo’s original motion for de-
fault judgment but had not responded to his supplement or the rul-
ings on default. It also stated that Colmenares had taken no other
action to oppose the default besides filing a “Notice of Apology,”
which alleged that he missed the pretrial conference because he
had car trouble and arrived at the courthouse an hour late. The
district court construed that filing as a motion to set aside the de-
fault and denied it.
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The district court ruled that Castillo alleged sufficient facts
to support default judgment on his claims of breach of fiduciary
duty, conversion, and constructive trust, and stated it would grant
judgment in the amount of $598,734.95 and “interest on the total
amount of the value of the property and the moneys that were di-
verted to begin on the date of the entry of the [j]udgment” in a
separate order. It denied Castillo’s requests for “accrual of pre-judg-
ment interest on the damages,” and “reserve[d] judgment on the
costs alleged by [Castillo], predicated on the submission of an affi-
davit showing” Castillo’s costs. It entered a default judgment to
that effect on that day.
Colmenares moved to alter or amend the judgment on the
ground that the action should have been a derivative action in
which Castillo could not recover personal damages. He also argued
that he lacked an opportunity to respond to Castillo’s supplement
to his motion for default judgment. He requested that the district
court “[c]orrect the clear error of law regarding [Castillo’s] lack of
standing,” “[r]emedy the procedural unfairness caused by the [dis-
trict c]ourt’s failure to permit a response to [Castillo’s] supple-
mental motion,” and “[d]ismiss all claims asserted by [Castillo] in
his individual capacity that are derivative of harm to Cash Invest-
ments LLC.”
The district court denied Colmenares’s motion. It ruled that
Castillo alleged personal harm and stated that Colmenares made
the same argument in his motion for judgment on the pleadings
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25-13815 Opinion of the Court 5
and his later motion for reconsideration. It also ruled that Col-
menares was not entitled to respond to the supplement but that he
was able to respond to the motion for default judgment. It de-
scribed Colmenares’s motion as the “most recent chapter in [Col-
menares’s] dilatory, bad faith conduct that he has maintained
throughout this case.”
Colmenares maintains that he does not seek to set aside the
default as to liability but seeks instead to challenge the damages
award on the grounds that Castillo cannot recover damages for
company losses and that the district court should have held a dam-
ages hearing. He also argues that his due process rights were vio-
lated when the district court denied him an opportunity to respond
to Castillo’s supplemental motion.
The district court did not err. Under Florida law, Castillo
could recover damages in a direct suit. Florida law provides that a
member of a limited liability company may sue in his individual
capacity, instead of in a derivative action, if he can satisfy a two-
part test: he must allege “a direct harm to the shareholder or mem-
ber such that the alleged injury does not flow subsequently from
an initial harm to the company” and “a special injury to the share-
holder or member that is separate and distinct from those sustained
by the other shareholders or members.” Freedman v. magicJack Vo-
caltec Ltd., 963 F.3d 1125, 1136 (11th Cir. 2020). A direct harm does
not occur when “the alleged wrongdoing flows first to the com-
pany and only damages the shareholders or members due to the
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6 Opinion of the Court 25-13815
loss in value of their respective ownership interest in the com-
pany.” Strazzulla v. Riverside Banking Co., 175 So. 3d 879, 883 (Fla.
Dist. Ct. App. 2015). Castillo experienced a harm that did not “flow
subsequently from an initial harm to the company.” Freedman, 963
F.3d at 1136. Colmenares induced him to place his properties and
capital into a limited liability company based on the assurance that
he would remain the sole owner of the properties and capital,
which Colmenares later misappropriated.
We review the decision whether to hold an evidentiary hear-
ing on damages for abuse of discretion. See Anheuser-Busch, Inc. v.
Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003); Kerrivan v. R.J. Reynolds
Tobacco Co., 953 F.3d 1196, 1204 (11th Cir. 2020). The district court
“has an obligation to assure that there is a legitimate basis for any
damage award it enters, and to assure that damages are not award
solely” as the result of one party’s failure to respond and are not
“unreasonable or speculative . . . with no factual basis.” Anheuser-
Busch, Inc., 317 F.3d at 1266. “Damages may be awarded only if the
record adequately reflects the basis for award via a hearing or a
demonstration by detailed affidavits establishing the necessary
facts.” Adolph Coors Co. v. Movement Against Racism & the Klan, 777
F.2d 1538, 1544 (11th Cir. 1985) (quotation marks omitted).
Under Rule 55(b), following the entry of default judgment,
a district court may conduct an evidentiary hearing “when, to enter
or effectuate judgment, it needs to . . . determine the amount of
damages.” Fed. R. Civ. P. 55(b)(2)(B). “Given its permissive lan-
guage, Rule 55(b)(2) does not require a damages hearing in every
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25-13815 Opinion of the Court 7
case.” Giovanno, 804 F.3d at 1366. “The district court may forego a
hearing where all essential evidence is already of record.” Id. (quo-
tation marks omitted). When a defendant defaults, he “admits the
plaintiff’s well-pleaded allegations of fact.” Lary v. Trinity Physician
Fin. & Ins. Servs., 780 F.3d 1101, 1106 (11th Cir.2015) (quotation
marks omitted).
The district court did not abuse its discretion in not holding
a hearing or in its damages award. See Adolph Coors Co., 777 F.2d at
1544. Castillo alleged that he lost investments totaling $598,734.95
in cash and real property as a result of Colmenares’s deception, and
by his default, Colmenares admitted that allegation. See Lary, 780
F.3d at 1106. Colmenares also enjoyed an opportunity to be heard
when he filed his motion to alter or amend the judgment, so his
due process rights were also not violated. See Am C.L. Union of Fla.,
Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1229 (11th Cir.
2009).
We AFFIRM.