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Colvin v. Van Wormer Resorts

April 9, 2010


The opinion of the court was delivered by: Hon. William J. Martini




Defendant Hotel Punta Colorada, S.A. ("Colorada" or "Hotel") placed advertisements in the Saltwater Sportsman, a magazine targeting among others, New Jersey residents such as the Colvins, through its booking agency Baja Fishing & Resorts Co. and its successor defendant Van Wormer Resorts, Inc. In consequence of these advertisements, in February 2005, Plaintiffs Mary P. Colvin and John Colvin called Baja and booked a vacation in Mexico at Colorada. Plaintiffs arrived on or about October 6, 2005. Two days later, on the morning of October 8, 2005, while on her way to a boat, Plaintiff Mary Colvin stepped into a hole (where a plank was missing) in the Hotel's wooden portable dock. Her right leg plunged through the hole, resulting in a painful split up to her groin, twisting her body. Her right leg was punctured in several spots by as many as three rusty nails, leaving (what is now) some minor scarring below the knee. She was 65 years old at the time of her injury.

Her right knee swelled up. She initially had ice placed on her knee to control the swelling. This was done on the boat itself, where Plaintiffs also took some pictures of her injury. Afterwards, she was treated in a local clinic, received a topical cream, pain medication, and a tetanus shot in consequence of the puncture wounds. These wounds did not result in any obvious or significant bleeding. As a result, she did not receive any stitches or sutures. Certainly there was no open or visible bone fracture. Since then she has participated in a therapy program: initially attending sessions at a clinic and thereafter pursuing the program by way of her own individualized regimen. At the time of her injury, over the course of what remained of her vacation in Mexico, and over the next eight weeks, she was cared for by her husband. Mary Colvin and her husband (he for loss of consortium, lost services from his wife, and his own time and inconvenience in regard to caring for his wife) brought suit against Defendants. There were no claims for economic loss, as in lost wages.

Defendants appeared, but only to contest personal jurisdiction, an issue on which they did not prevail. Subsequently Defendants refused to appear in these proceedings, and the Court found the Defendants in default. Thereafter, a damages hearing was held in which the Colvin's testified. Mary Colvin was 69 at the time of the hearing. Again, the Defendants did not appear at the damages hearing.

For the reasons elaborated below, the Court will find that the Colvins have been damaged by the Defendants in the amount of $172,336.


The Court possesses subject matter jurisdiction to hear this case by reason of diversity jurisdiction. See 28 U.S.C. § 1332. Plaintiffs' damages claim, $775,000, is in excess of the jurisdictional amount. Plaintiffs are residents of New Jersey, while Defendant Van Wormer Resorts, Inc. is a California Corporation and Hotel Punta Colorada is a Mexican entity. New Jersey is not the principal place of business for either entity. See Hertz v. Friend, No. 08-1107, 2010 WL 605601, 130 S.Ct. 1181 (U.S. Feb. 23, 2010) (adopting nerve center approach).


The facts of this case are known to the parties and laid out in the Court's prior letter opinion. See Colvin et al. v. Van Wormer Resorts, Inc. et al., Civil Action No. 2:07-cv-04826, 2008 WL 5245987 (D.N.J. Dec. 12, 2008) (denying motions to dismiss for lack of personal jurisdiction). After issuing the prior opinion, counsel for both Defendants expressly notified the Court by letter that they would participate in no further proceedings on this matter before this Court. Plaintiffs moved for default and the Court directed the Clerk of the Court to enter default against the Defendants. Default was entered on June 29, 2009. A hearing on damages was held on February 17, 2010, which was followed by a letter submission by counsel for Plaintiffs.


"Default establishes the defaulting party's liability for the well-pleaded allegations of the complaint." United States v. Gant, 268 F. Supp. 2d 29, 32 (D.D.C. 2003) (citing Brock v. Unique Racquetball & Health Clubs, Inc., 786 F.2d 61, 65 (2d Cir. 1986)). Default does not establish liability for the amount of damages claimed by the plaintiff. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974) ("While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation."). "The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).

The district court has considerable latitude in determining the amount of damages. Jones v. Winnepesaukee Realty, 990 F.2d 1, 4 (1st Cir. 1993). In determining the amount, the district court may conduct a hearing. Fed. R. Civ. P. 55(b)(2). The court is not required to do so, however, "as long as it ensure[s] that there [is] a basis for the damages specified in the default judgment." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997). "It is familiar practice and an exercise of judicial power for a court upon default, by taking evidence when necessary or by computation from facts of record, to fix the amount which the plaintiff is lawfully entitled to recover and to give judgment accordingly." Pope v. United States, 323 U.S. 1, 12 (1944).


At the outset, the Court notes that Plaintiff Mary Colvin asserts multiple bodily injuries in connection with the accident on the dock, her fall, and the injuries she sustained that day. She asserts claims, harms, and damages in connection with injuries (including loss of functionality and pain and suffering) relating to her right knee, her left knee, leg injuries, ankle and foot injuries, groin injury, thigh injury, shoulder and upper arm injuries, wrist and hand injuries, back injuries, etc., etc. As the Court explains below, some of these injuries were well-supported by the evidence presented at the damages hearing. But the Court is not satisfied that Mary Colvin has established that each and every such claim for bodily injury was causally connected ...

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