United States District Court, D. New Jersey
A. STEINBERG PRICE MEESE SHULMAN & D'ARMINO, P.C.
Attorney for Maersk Line.
L. HILLMAN, U.S.D.J.
a breach of contract action concerning Plaintiff's
transport of cargo for the benefit of Defendants from
2012-2015. Presently before this Court is Plaintiff's
Amended Motion for Default Judgment against Defendants TJM
International Limited Liability Company (“TJM
International”) and Marsh and Associates Signing
Services, LLC (“Marsh and Associates, ” and
collectively with TJM International, “Entity
Defendants”). Entity Defendants have not opposed this
motion. For the reasons stated herein, Plaintiff's
Amended Motion for Default Judgment will be granted.
Court takes its facts from Plaintiff's Complaint.
According to the complaint, Plaintiff is a common carrier by
water in interstate and foreign commerce as defined by the
Shipping Act, and was such a common carrier when it
performed services for Defendants. Entity Defendants are
limited liability companies formed in and citizens of New
alleges it fully performed transportation services for
Defendants pursuant to written contracts of carriage between
Plaintiff and Defendants, except those obligations, if any,
which Plaintiff was excused from performing. Plaintiff
demanded Defendants pay the amount due under the contracts,
but Defendants have refused to pay. Plaintiff alleges that
TJM International and Marsh and Associates are the agent or
alter ego of each other. Entity Defendants are
“Merchants” as defined by the terms and
conditions of Plaintiff's bills of lading. Plaintiff
pleads the following counts: (1) for money due under tariff
or service contracts per the Shipping Act, (2) breach of
contract, (3) unjust enrichment, (4) quantum meruit, (5)
account stated, and (6) attorney's fees. Plaintiff
alleges Defendants are liable for the payment of invoiced
amounts, interest due on outstanding and overdue sums, and
reasonable attorney's fees and expenses incurred in
collecting any sums due. Plaintiff alleges the services
received by Defendants equals $62, 437.50.
filed its complaint on July 16, 2018, and it was served on
Defendants on July 19, 2018. Defendants, as of the date of
this Opinion, have failed to appear in this action. The Clerk
entered default on September 6, 2018 against Entity
Defendants. On November 8, 2018, Plaintiff filed its Motion
for Default Judgment against Entity Defendants. On April 18,
2019, this Court denied, without prejudice, Plaintiff's
Motion for Default Judgment for failing to specify the claims
and elements constituting the basis of the request for
default judgment and for failing to file documents evidencing
the contractual relationship between the parties and the
value of the services provided. Plaintiff filed its Amended
Motion for Default Judgment against Entity Defendants on May
15, 2019. Entity Defendants have not responded within the
time specified; thus, this motion is fully briefed and ripe
Subject Matter Jurisdiction
Court possesses jurisdiction over this case pursuant to 28
U.S.C. §§ 1331, 1333, and 1367. Plaintiff asserts a
claim under a federal statute, the Shipping Act, 46 U.S.C.
§ 41102. Subject matter jurisdiction also lies in
addition to subject matter jurisdiction, this Court must also
be satisfied it possesses personal jurisdiction over
Defendants. See U.S. Life Ins. Co. v. Romash, No.
09-3510 (GEB), 2010 U.S. Dist. LEXIS 57276, at *3-4 (D.N.J.
June 9, 2010) (“Before entering default judgment, the
court must address the threshold issue of whether it has
subject matter jurisdiction and personal jurisdiction over
the parties.” (citing Williams v. Life Sav. &
Loan, 802 F.2d 1200, 1203 (10th Cir. 1986))).
appears this Court possesses personal jurisdiction over
Entity Defendants. Plaintiff alleges Entity Defendants are
citizens of New Jersey. This Court is satisfied personal
jurisdiction over Entity Defendants exists in this case on
the basis of general jurisdiction.
first step in obtaining a default judgment is the entry of
default. “When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise,
the Clerk must enter the party's default.”
Fed.R.Civ.P. 55(a). The Clerk entered default against Entity
Defendants on September 6, 2018.
Rule of Civil Procedure 55(b)(2) authorizes courts to enter a
default judgment against a properly served defendant who
fails to a file a timely responsive pleading.”
Chanel v. Gordashevsky, 558 F.Supp.2d 532, 535
(D.N.J. 2008) (citing Anchorage Assocs. v. Virgin Is. Bd.
of Tax Rev., 922 F.2d 168, 177 n.9 (3d Cir. 1990)). But
a party seeking default judgment “is not entitled to a
default judgment as of a right.” Franklin v.
Nat'l Mar. Union of Am., No. 91-480, 1991 U.S. Dist.
LEXIS 9819, at *3-4 (D.N.J. 1991) (quoting 10 Wright, Miller
& Kane, Federal Practice and Procedure § 2685
(1983)), aff'd, 972 F.2d 1331 (3d Cir. 1992). The
decision to enter a default judgment is “left primarily
to the discretion of the district court.” Hritz v.
Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).
every “well-pled allegation” of the complaint,
except those relating to damages, are deemed admitted,
Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d
Cir. 1990), before entering a default judgment the Court must
decide whether “the unchallenged facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law, ” Chanel, 558
F.Supp.2d at 535 (citing Directv, Inc. v. Asher, No.
03-1969, 2006 U.S. Dist. LEXIS 14027, at *3 (D.N.J. Mar. 14,
2006)). “Three factors control whether a default
judgment should be granted: (1) prejudice to the plaintiff if
default is denied, (2) whether the defendant appears to have
a litigable defense, and (3) whether defendant's delay is
due to culpable conduct.” Chamberlain v.
Giampapa, 210 F.3d 154, 164 (3d Cir. 2000); United
States v. $55, 518.05 in U.S. Currency, 728 F.2d 192,
195 (3d Ci. 1984). If a review of the complaint demonstrates
a valid cause of action, the Court must then determine
whether the plaintiff is entitled to default judgment.
Whether Plaintiff has Stated a Cause of Action
discussed supra, Plaintiff has asserted six counts. This
Court will determine whether each claim asserted by Plaintiff
properly states a cause of action.
Violation of the Shipping Act
Shipping Act contains an implied private cause of action to
collect fees owed pursuant to published tariffs. Sea-Land
Serv., Inc. v. Murrey & Son's Co. Inc., 824 F.2d
740, 744 (9th Cir. 1987). To establish a prima facie case
under the Shipping Act, a plaintiff must establish a
defendant obtained transportation at less than applicable
rates. 46 U.S.C. § 41102. A plaintiff must show a
defendant “[(1)] knowingly and willfully, [(2)]
directly or indirectly, [(3)] by means of false billing,
false classification, false weighing, false report of weight,
false measurement, or any other unjust or unfair device or
means, [(4)] obtain[s] or attempt[s] to obtain ocean
transportation for property at less than the rates or charges
that would otherwise apply.” Id.
Plaintiff's Complaint alleges Entity Defendants knowingly
and willfully failed and refused to pay Plaintiff the full
amount due. (Pl.'s Compl. ¶ 8.) Because Plaintiff
alleges Entity Defendants knowingly and willfully refused to
pay, the first element is satisfied. Plaintiff alleges that
it demanded Entity Defendants pay the full amount due and
argues Entity Defendants directly failed to do so. (Pl.'s
Compl. ¶ 7.) Because Plaintiff argues Entity Defendants
directly failed to pay the amount due, the second element is
met. Plaintiff's Complaint alleges Entity Defendants used
unjust means to avoid payment of invoices through the use of
TJM International and Marsh and Associates as agents or alter
egos of each other. (Pl.'s Compl. ¶ 3.)
provides bills of lading, export invoices, and detention
invoices that use TJM International and Marsh and Associates
with the same billing address; New Jersey Business Entity
Information and Records Service that assert Cheryl Marsh is
the “Agent” of both TJM International and Marsh
and Associates with the same address, 621 Beverly Rancocas
Road, Ste. 114, Willingboro, N.J. 08046; and an email
signature and a website page that uses TJM International and
Marsh and Associates interchangeably. (Pl.'s Amended Mot.
for Default J., Ex. B, G, H, & I.) Because Plaintiff
alleges Entity Defendants used unjust means to avoid payment,
the third element is ...