Canadian National Railway Company v. Phoenix Logistics, Inc.
Filing
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ORDER RE SUPPLEMENTAL BRIEFING AND/OR EVIDENCE. Signed by Judge Edward M. Chen on 4/4/2012. (emclc2, COURT STAFF) (Filed on 4/4/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CANADIAN NATIONAL RAILWAY
COMPANY,
No. C11-4589 EMC
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Plaintiff,
v.
ORDER RE SUPPLEMENTAL
BRIEFING AND/OR EVIDENCE
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For the Northern District of California
United States District Court
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PHOENIX LOGISTICS, INC.,
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Defendant.
___________________________________/
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Plaintiff Canadian National Railway Company’s (“Canadian’s”) motion for default judgment
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is set for hearing before the Court on April 13, 2012. Docket No. 9. Having considered Plaintiff's
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brief and accompanying submissions, the Court hereby orders that supplemental briefing and/or
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evidence be provided as follows.
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If the Court determines that default judgment is warranted, the Court must determine what
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damages are appropriate. In its motion for default judgment, Plaintiff asks for $161,569.95, the
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amount it alleges is still outstanding under the parties’ payment schedule set forth in their
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Agreement for Payment of Accounts Receivable (“Agreement”). Anderson Decl., Docket No. 9-1, ¶
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4. Plaintiff has the burden of “proving up” its damages. See Board of Trustees of the Boilermaker
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Vacation Trust v. Skelly, Inc., No. 04-02841 CW, 2005 WL 433462, at *2 (N.D. Cal. Feb. 24, 2005)
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(“Plaintiff has the burden of proving damages through testimony or written affidavit.”).
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Based on the evidence submitted thus far, it does not appear that Plaintiff has met its burden
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of proof regarding the outstanding payments. Although Mr. Anderson declares that $161,569.95 is
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outstanding, he does not specify at what point Defendant ceased making payments so that the Court
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could verify the amount owed. See Anderson Decl. ¶ 4 (“The defendant defaulted in its payments
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under the Agreement and the outstanding amount due is $161,569.95 USD.”). Mr. Anderson cites to
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the payment schedule attached to the Agreement, but the outstanding amount owed does not match
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any of the balances shown on the payment schedule. Id. Ex. A, Schedule I. Nor does Plaintiff
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provide any account records of previous deposits, outstanding balances, or bills or other notices to
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Defendant regarding the delinquent contributions from which the Court could discern when
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Defendant stopped making payments and how much is due. Cf. Board of Trustees of the Laborers
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Health & Welfare Fund for the N. Cal. v. Perez, No. C-10-2002 JSW (JCS), 2011 WL 6151506, at
*10 (N.D. Cal., Nov. 7, 2011) (finding evidence sufficient to prove damages where plaintiffs
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For the Northern District of California
United States District Court
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provided "employer reports of contribution" for the months defendant failed to pay contributions,
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and a declaration from plaintiffs’ accounts receivable manager attesting to the truth of the records);
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Webb v. Indigenous Global Dev. Corp., C-04-3174 MJJ, 2005 WL 1200203, at *5 (N.D. Cal. May
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16, 2005) (finding evidence sufficient where plaintiff “provided the Court with a copy of the
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promissory note signed by IGDC which specifically states that IGDC must ‘repay the principal sum
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of $250,000 to [Mr. Webb] on or before May 11, 2004,’” along with “a copy of the audit letter sent
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to him by IGDC, which acknowledges the $250,000 debt”); Cent. California Elec. Indus. Health &
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Welfare & Pension Trust Funds v. Goleta Elec., Inc., C-11-2755 EMC, 2012 WL 555094, at *5
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(N.D. Cal. Feb. 21, 2012) (finding evidence sufficient where plaintiffs provided copies of monthly
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“transmittals evidencing the amounts of unpaid principal per month from December 2009 through
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April 2010, which add up to the sum” plaintiffs claimed was owed).
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Unlike in the above cases, here Plaintiff offers no documentation of the amount owed; rather,
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it simply offers a payment schedule and states that Defendant owes an amount not listed or easily
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discernible from that payment schedule. While the payment schedule contains check marks that
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would appear to indicate when Defendant made the required payments, and an x mark that would
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appear to indicate when it stopped making payments, those notes do not match an amount due of
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$161,569.95. In addition, Plaintiff has submitted no foundational evidence to establish the meaning
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and accuracy of those handwritten marks on the payment schedule.
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Accordingly, Plaintiff is directed to submit to the Court any and all evidence establishing that
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Defendant owes $161,569.95. Plaintiff shall file such evidence and any accompanying briefing no
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later than April 9, 2012, at 4:00 p.m.
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IT IS SO ORDERED.
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Dated: April 4, 2012
_________________________
EDWARD M. CHEN
United States District Judge
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For the Northern District of California
United States District Court
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