                       United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                 ___________

                                 No. 96-2186
                                 ___________

Linda Holman,                            *
                                         *
             Appellee,                   *
                                         *
       v.                                *
                                         *
National Postal Mail Handlers Union,     *
A division of Laborers' International    * Appeal from the United States
Union of North America, AFL-CIO;         * District Court for the
Local #297, National Postal Mail         * Western District of Missouri.
Handlers Union,                          *
                                         *      [UNPUBLISHED]
             Defendants,                 *
                                         *
Phillip W. Binns,                        *
                                         *
             Appellant.                  *
                                    ___________

                         Submitted: July 3, 1997
                             Filed: July 7, 1997
                                 ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                            ___________

PER CURIAM.
       Phillip Binns appeals the district court's1 entry of default judgment against him,
and the court's award of damages and attorney's fees to plaintiff Linda Holman in her
action alleging state law battery and a violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2000e-17.

       Although Binns correctly argues that Holman could not hold him liable in his
individual capacity under Title VII following the court's dismissal of the Union
defendants, see Smith v. St. Bernards Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir.
1994), we conclude it was within the district court's discretion to retain supplemental
jurisdiction over Holman's battery claim against Binns. See 28 U.S.C. § 1367(a),
(c)(3); Baker v. Farmers Elec. Coop., Inc., 94 F.3d 274, 283 (5th Cir. 1994).

       We find no abuse of discretion in the district court's entry of default judgment
here, given Binns's failure to answer the complaint or otherwise defend this action. See
Fed. R. Civ. P. 55; Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir. 1993)
(standard of review).

       We conclude the award of damages to Holman was proper and supported by
adequate foundation. We also conclude that--contrary to Binns's assertions on appeal--
the district court was not required to hold an evidentiary hearing before assessing the
amount of out-of-pocket medical expenses, as they were capable of ascertainment from
definite figures in Holman's affidavit, and Binns did not contest the amounts set forth
there. See Fed. R. Civ. P. 55(b)(2) (court may conduct evidentiary hearing if necessary
to determine amount of damages).

     We further conclude the district court properly assessed a reasonable amount of
damages for mental suffering without specific proof of Holman's anguish and


      1
        The HONORABLE D. BROOK BARTLETT, Chief Judge, United States
District Court for the Western District of Missouri.

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humiliation. See K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. 1996) (en banc)
(offensive touching of sexual nature is battery; damages for mental suffering are
recoverable for battery); Prange v. Prange, 755 S.W.2d 581, 592 (Mo. Ct. App. 1987)
(no fixed measure or standard available to trier of fact in determining damages for pain
and suffering; in case involving assault and battery, mental anguish and humiliation are
proper elements of damages, as they are necessary and natural consequences of tort,
and may be inferred from character of injuries even though not pleaded and without
specific proof).

      Binns correctly argues, however, that attorney's fees are not generally
recoverable in Missouri in tort actions. See Rook v. John F. Oliver Trucking Co., 505
S.W.2d 157, 161 (Mo. Ct. App. 1973); see also Phil Crowley Steel Corp. v. Sharon
Steel Corp., 702 F.2d 719, 721 (8th Cir. 1983).

      Accordingly, we affirm the district court's judgment in all respects, except that
we vacate the award of attorney's fees.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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