In this diversity action for defamation, Anheuser-Busch, Inc. (“Busch”) appeals from the district court’s final judgment in favor of Irvin P. Philpot, III (“Philpot”). Busch, a Missouri corporation, filed the action against Philpot, a Florida citizen, alleging that Philpot had defamed Busch by maliciously telling hundreds of people,
Although an attorney initially appeared on Philpot’s behalf, he withdrew on January 25, 2001, after moving to dismiss the case and responding to Busch’s interrogatories and request for рroduction of documents. Philpot thereafter remained without the assistance of counsel and failed to answer the complaint. The clerk of сourt, upon Busch’s motion, accordingly entered a default against him on April 10, 2001. Thereafter, on May 1, 2001, Busch served Philpot with a request for admissions pursuant to Federal Rule of Civil Procedure 36; 1 the pertinent Request for Admission stated that Busch had “suffered general damages in an amount not less than $2,000,000.00 as a result of the facts and circumstances set forth in the Complaint.” After Philpot failed to respond to the Request for Admission, Busch moved for an entry of final default judgment and damages in the amount of $2,000,000. On September 7, 2001 the court entered a default judgment against Philpot and scheduled an evidentiary hearing to determine damages.
Busch took thе position that Philpot’s failure to respond to its Request for Admission conclusively established its entitlement to $2,000,000 in damages, but stated that if required, its expert witness would еstablish that Busch had suffered more than $2,000,000 in damages as a result of the defamation. The court ruled that under the circumstances presented, Busch would have tо prove actual damages in order to prevail on its defamation claim. Accordingly, it proceeded with the eviden-tiary hearing pursuant to Federal Rule of Civil Procedure 55(b)(2).
At the hearing, Busch’s expert offered his opinion that because of Philpot’s defamatory statements, Busch did not receive full vаlue for the approximately 266 million dollars it had spent to strengthen its relationship with its wholesalers during the relevant period. Based on the notion of “cоrrective advertising,” which proposes that injury from defamatory statements can be as high as twenty-five percent of a company’s relevant advеrtising costs, the expert testified that he thought that Busch was entitled to at least one to five percent of its $266 million expenditure, or $2.6 to 13.3 million. According to thе expert, the need for corrective advertising could be inferred from Busch’s increased advertising expenditures between 1997 and 2000, which reversed the trend bеtween 1990 and 1996. Philpot testified only briefly, regarding his alleged calls to influential people, explaining that he either had not spoken with them or had not said аnything negative to them about Busch.
The court concluded that Busch had not presented any evidence of harm to its reputation at a consumer or distributor level, of loss of value, or of a need to engage in corrective advertising. As to Busch’s expert testimony regarding the inferred need
DISCUSSION
The issue before us is the narrow question of whether the trial court abused its discretion in requiring an evidentiary hearing to prove actuаl damages under the circumstances presented.
See Johnson v. DeSoto County Board of Commissioners,
Under Florida law,
2
proof of “actual damage” is an essential element of a defamation action.
See Miami Herald Publ’g Co. v. Ane,
In this case, the Request fоr Admission asserted an amount that was not based on any specified fact; there was nothing in the Request for Admission or Complaint that established, or even suggestеd, facts -that supported a concrete, actual damage amount. Damages resulting from defamation, unlike liquidated damages, may range from nominаl to significant amounts. We cannot say it is an abuse of discretion for a trial judge to conduct an evidentiary hearing when the amount of damages is uncertain and speculative. A court has an obligation to assure that there is a legitimate basis for any damage award it enters, and to assure that damages аre not awarded solely as the result of an unrepresented defendant’s failure to respond to a Request for Admission that may allege a completely unreasonable or speculative amount of damages with no factual basis.
See id.; cf. Brook Village North Assoc. v. General Elec. Co.,
Under the circumstances in the present case — Philpot’s
pro se
status, the requirement of proof of actual damages in a defamation action, and the lack of any factual basis for the damage amount in the
Finally, we reject Busch’s аrgument that the district court erred by setting aside the default judgment absent a motion by Philpot. The default judgement entered by the court against Philpot was not a final dеfault judgment, as it provided neither relief nor damages.
See Chudasama v. Mazda Motor Corp.,
AFFIRMED.
Notes
. Under the fеderal rules, ''[a] party may serve upon any other party a written request for the admission ... of the truth of any matters,” Fed.R.Civ.P. 36(a), that are "relevant to the clаim,”
id.
26(b)(1). A request that is not responded to within 30 days of service is deemed admitted.
See id.
36(a). "Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”
Id.
36(b);
see United States v. 2204 Barbara Lane,
. We apply Florida substantive law to the defamation claim.
Seе Media Services Group, Inc. v. Bay Cities Communications, Inc.,
. We note that Busch never argued below that it would be prejudiced by the evidentiary hearing nor moved for a continuance of the hearing in order to avoid such prejudice.