Gray et al v. FedEx Ground Package System, Inc.

Filing 582

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Amend the Judgment to Include Pre- and Post-Judgment Interest 553 is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Plaintiffs request to amend the judgmen t to include pre-judgment interest is DENIED. IT IS FURTHER ORDERED that the Judgment entered in this action on May 12, 2014, is amended to award Plaintiffs Bobby Brown, Reginald Gray, Jammie Hill, Marcus Holmes, Michael Jost, Richard Mitchell, Carl Tucker, James Tichenor, and John Waweru, post-judgment interest at a rate of 0.10% from May 12, 2014. A separate amended judgment will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 9/5/14. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

REGINALD GRAY, et al.,
Plaintiffs,
v.
FEDEX GROUND PACKAGE SYSTEM,
INC.,
Defendant.

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No. 4:06-CV-00422 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Amend the Judgment to Include
Pre- and Post-Judgment Interest on the verdict amounts awarded to Plaintiffs Bobby Brown,
Reginald Gray, Jammie Hill, Marcus Holmes, Michael Jost, Richard Mitchell, Carl Tucker,
James Tichenor, and John Waweru (collectively, “Plaintiffs”) pursuant to Mo. Rev. Stat. §
408.020 and 28 U.S.C. § 1961. (Doc. No. 553) Defendant FedEx opposes the motion insofar as it
seeks an award of prejudgment interest. The motion is fully briefed and ready for disposition.
For the following reasons, the motion will be granted in part and denied in part.
Discussion
Prejudgment interest can only be awarded under § 408.020 on liquidated damage claims.
Macheca Transport Co. v. Philadelphia Indem. Ins. Co., 737 F.3d 1188, 1196 (8th Cir. 2013)
(citing Watters v. Travel Guard Int'l, 136 S.W.3d 100, 111 (Mo.Ct.App.2004)). Prejudgment
interest is generally not available for unliquidated claims because the defending party does not
know the amount owed and should not be considered in default for failure to pay. Id. (citing
Fohn v. Title Ins. Corp. of St. Louis, 529 S.W.2d 1, 5 (Mo.1975); Investors Title Co. v. Chicago

Title Ins. Co., 983 S.W.2d 533, 538 (Mo.Ct.App.1998)). “In order to be liquidated so as to allow
interest, a claim must be fixed and determined or readily determinable, but it is sufficient if the
amount due is ascertainable by computation or by a recognized standard.” Id. “An exact
calculation of damages need not be presented in order for the claim to be considered liquidated.
Damages may still be ascertainable, even in the face of a dispute over monetary value or the
parties' experts compute different estimates of the loss.” Comens v. SSM St. Charles Clinic Med.
Grp., Inc., 335 S.W.3d 76, 82 (Mo.Ct.App.2011) (internal quotation marks and citation omitted).
FedEx argues Plaintiffs are not entitled to prejudgment interest because their claims for
fraudulent misrepresentation, a tort, do not fall under any of the enumerated categories of §
408.020, i.e., “money due and payable, on written contracts,” “accounts after they become due
and demand of payment is made,” “money recovered for the use of another, and retained without
the owner’s knowledge of the receipt,” or money “due for the forbearance of payment whereof
an express promise to pay interest has been made.” Mo. Rev. Stat. § 408.020. Moreover, even if
Plaintiffs’ claims fell into one of these categories, their damages were not liquidated or “readily
ascertainable.” (Doc. No. 556, p. 2, citing St. John’s Bank & Trust Co. v. Intag, Inc., 938 S.W.2d
627, 630 (Mo. Ct. App. 1997)). “When the measure of damages in a tort case is contested, the
damages are not readily ascertainable and prejudgment interest may not be awarded.” In re
Lauer, 371 F.3d 406, 412-13 (8th Cir. 2004) (award of prejudgment interest reversed because the
parties disagreed as to which figures comprised plaintiffs’ total recoverable damages for fraud;
thus, the claim was not liquidated).
In reply, Plaintiffs contend their damages were ascertainable by a recognized standard.
The standard for measuring damages in a fraudulent misrepresentation claim is the difference
between what the plaintiff received and the value given for what he received. Plaintiffs argue the

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fact that both sides’ damages experts computed the amount of these damages differently does not
render their damages unliquidated. (Doc. No. 567, pp. 4-6)
Plaintiffs further argue that even if their claims are unliquidated and not readily
ascertainable, they are nonetheless entitled to prejudgment interest on the reasonable value of the
services rendered. (Doc. No. 567, pp. 10-11) Plaintiffs rely on Farmland Indus. v. Frazier-Parrott
Commodities, 111 F.3d 588, 592 (8th Cir. 1997) and Laughlin v. Boatmen’s Nat’l Bank of St.
Louis, 189 S.W.2d 974, 979 (Mo.Ct.App. 1945), two cases awarding prejudgment interest on
claims for attorneys’ fees. In Farmland, a commodities broker successfully defended a lawsuit
brought by one of its customers and then sought an award of attorneys’ fees under a provision of
the brokerage contract. The court held that because the contract gave the broker a claim for the
reasonable value of the services rendered by attorneys in defense of the action, the case required
an award of prejudgment interest. 111 F.3d at 593 (citing Laughlin, 189 S.W.2d at 979-80). In
Laughlin, the court held that prejudgment interest could be awarded in an action “in quantum
meruit for the reasonable value of legal services.” 189 S.W.2d at 978.
FedEx distinguishes these cases in that neither one of them involved a tort claim. Rather,
the cases arose from unique causes of action in which the plaintiffs sought to recover, in
quantum meruit, or for breach of contract, the reasonable value of services rendered for which
they were not paid.1 (Doc. No. 572, pp. 2-3) Here, Plaintiffs asserted a claim for fraudulent
misrepresentation, not for breach of contract or quantum meruit, and were paid pursuant to the
Operating Agreement. In addition, FedEx points to a number of Missouri cases finding fraud
claims are not eligible for prejudgment interest. See e.g., Sequa Corp. v. Cooper, 128 S.W.3d 69,
77-78 (Mo. Ct. App. 2003); California & Hawaiian Sugar Co. v. Kansas City Terminal
1

The Court granted FedEx leave to file a surreply to address this argument, raised for the first time in Plaintiffs’
reply memorandum.

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Warehouse Co., Inc., 602 F. Supp. 183, 190 (W.D. Mo. 1985). See also Schreibman v. Zanetti,
909 S.W.2d 692, 704-05 (Mo.Ct.App. 1995), where the court held that plaintiff’s claim for
damages based on fraudulent misrepresentation was not liquidated where the parties “hotly
contested” the measure of damages.
The Court ruled that Plaintiffs were entitled to seek as damages the benefits they should
have received as FedEx employees. As evidenced by their respective expert reports, Plaintiffs
and FedEx vigorously disputed the proper theory and measure of these damages, as well as the
proper calculation of damages per the methodology of Plaintiffs’ expert, Douglas Miller.
Because there was no readily ascertainable method by which FedEx could have been aware of
the amount it owed, Plaintiffs’ claims were unliquidated and prejudgment interest is not
recoverable. Ritter Landscaping, Inc. v. Meeks, 950 S.W.2d 495 (Mo.Ct.App. 1997); Swift
Transp. Co., Inc. v. Swearengin, 709 S.W.2d 130 (Mo.Ct.App. 1986).
Moreover, § 408.040.3, RSMo 2014, provides in part:
In tort actions, if a claimant has made a demand for payment of a claim or an offer of
settlement of a claim, to the party, parties or their representatives … and the amount of
the judgment or order exceeds the demand for payment or offer of settlement, then
prejudgment interest shall be awarded, calculated from a date ninety days after the
demand or offer was received … or from the date the demand or offer was rejected
without counteroffer, whichever is earlier.
“Prejudgment interest in tort actions is recoverable only upon proof of fact demonstrating the
requirements of § 408.040 have been met.” Chambers by Abel v. Rice, 858 S.W.2d 230, 232
(Mo.Ct.App.1993). Plaintiffs did not establish compliance with this statute. Therefore, they are
not entitled to prejudgment interest.
FedEx does not oppose Plaintiffs’ request for post-judgment interest. Thus, Plaintiffs’
motion will be granted in this respect.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ Motion to Amend the Judgment to Include
Pre- and Post-Judgment Interest [553] is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Plaintiffs’ request to amend the judgment to include
pre-judgment interest is DENIED.
IT IS FURTHER ORDERED that the Judgment entered in this action on May 12, 2014,
is amended to award Plaintiffs Bobby Brown, Reginald Gray, Jammie Hill, Marcus Holmes,
Michael Jost, Richard Mitchell, Carl Tucker, James Tichenor, and John Waweru, post-judgment
interest at a rate of 0.10% from May 12, 2014.
A separate amended judgment will accompany this Memorandum and Order.
Dated this 5th day of September, 2014.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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