PIANO WELLNESS, LLC v. WILLIAMS

Filing 225

OPINION. Signed by Judge Noel L. Hillman on 6/29/2017. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PIANO WELLNESS, LLC,
Plaintiff,
v.
CHARLOTTE K. WILLIAMS, a
citizen of the State of
Georgia, individually and
trading as
KeyboardWellness.com,
Defendant.

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Civ. A. No. 11-1601 (NLH)(AMD)

OPINION

APPEARANCES:
ELLIOTT J. STEIN
STEVENS & LEE, PC
100 LENOX DRIVE
SUITE 200
LAWRENCEVILLE, NJ 08648
On behalf of Plaintiff
CHARLOTTE K. WILLIAMS
2550 SANDY PLAINS ROAD
SUITE 225
MARIETTA, GA 30066
Defendant appearing pro se

HILLMAN, District Judge
The procedural history of this case is long and tortured,
and, among other events, has involved an aborted jury trial that
was deemed a mistrial on November 14, 2014 due to Defendant’s
purported health problems 1 (Docket No. 130), three orders directing

1

On November 13, 2014, at the end of the Court’s two-hour long
conference with the parties regarding trial documents in

Defendant to engage in mediation (Docket No. 148, 151, 179), one
adjourned contempt hearing due to Defendant’s notice that she
would not attend (Docket No. 162), an Order to Show Cause as to
why Defendant should not undergo an independent medical
examination (Docket No. 164), a second contempt hearing at which
Defendant failed to appear (Docket No. 190), an Order to Show
Cause why default judgment should not be entered against Defendant
(Docket No. 191), a hearing on the Order to Show Cause regarding
default judgment, at which Defendant failed to appear (Docket No.

preparation for opening statements before the jury, which was to
report for service at 1:00 p.m., Defendant represented to the
Court that she was suffering from an illness that required
immediate emergency medical care. Defendant went to the Cooper
University Hospital emergency department in Camden, New Jersey.
The Court ordered Defendant to appear at the courtroom upon her
discharge from the hospital, and provide the Court with medical
documentation regarding her hospital treatment. (Docket No. 125.)
Plaintiff never appeared, and instead telephoned the Court on
November 14, 2014 that she wanted the Court to release the jury
and declare a mistrial due to her inability to appear for medical
reasons. (Docket No. 129.) A year later, the nature and extent
of Defendant’s medical condition remained unclear. (See Docket
No. 164.) The only medical record provided by Defendant to
support her contention that her medical condition precludes her
from participating in the litigation and mediation since the
mistrial is a half-page progress note of an EEG performed on
August 23, 2013, which states that the EEG suggests “mild left
temporal dysfunction that is not specific for etiology. Clinical
correlation is advised.” (Docket No. 192 at 4.) Defendant
provided that document on March 4, 2016, despite the Court’s prior
orders in 2014 and 2015 directing Defendant to provide medical
documentation to support her contentions. Defendant has never
submitted a note from any of her treating physicians that explains
a medical basis for her claimed impairments.
2

198), and an order granting default against Defendant (Docket No.
200).
Currently pending is the motion of Plaintiff for default
judgment in its favor (Docket No. 207), and Defendant’s motion to
vacate default against her, as well as vacate several other Court
orders, pursuant to Fed. R. Civ. P. 60(b)(1), (3), (6) (Docket No.
202).
DISCUSSION
A.

Subject matter jurisdiction

Originally, this Court exercised subject matter jurisdiction
over this action pursuant to 28 U.S.C. § 1338(a) because
Plaintiff’s original complaint included claims for trademark
infringement.

Plaintiff filed an amended complaint on December

18, 2015, wherein it removed its trademark infringement claims and
instead asserted claims for breach of contract and declaratory
judgment.

Consequently, this Court exercises subject matter

jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)
insofar as the amount in controversy exceeds $75,000.00 and
Plaintiff is a citizen of New Jersey, and Defendant is a citizen
of Georgia, and 28 U.S.C. §§ 2201 and 2202, insofar as Plaintiff
seeks a declaratory judgment in respect of an actual controversy
between Plaintiff and Defendant.
B.

Rule 60(b), Rule 55(b)(2), and the Poulis factors

For Defendant’s motion to vacate, Rule 60(b) provides:
3

(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
For Plaintiff’s motion for default judgment under Fed. R.
Civ. P. 55(b)(2), “[t]hree 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 Cir. 1984).
In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863,
868 (3d Cir. 1984), the Third Circuit outlined the following
factors that should be considered prior to dismissing a case: (1)
the extent of the party's personal responsibility; (2) the
4

prejudice to the adversary caused by the failure to meet
scheduling orders and respond to discovery; (3) a history of
dilatoriness; (4) whether the conduct of the party or the attorney
was willful or in bad faith; (5) the effectiveness of sanctions
other than dismissal, which entails an analysis of alternative
sanctions; and (6) the meritoriousness of the claim or defense.
C.

Analysis
1.
Application of Rule 60(b), Rule 55(b)(2), and
Poulis factors

The Court finds that the circumstances of this case meet the
three elements of the default judgment standard and the six Poulis
factors:
(1) Defendant’s personal responsibility: From the mistrial
on, the cause for all of the Court’s numerous orders falls
squarely on Defendant.

Defendant repeatedly claims that her poor

health and financial conditions have precluded her from complying
with the Court’s Orders, but she has failed to provide competent
documentation to support her claims – even ignoring this Court’s
explicit orders to do so.
(2) Prejudice to Plaintiff: Plaintiff has had to waste time
and resources to respond to Defendant’s conduct and fruitlessly
attempt to engage in mediation to resolve the parties’ dispute.
(3) History of dilatoriness: For almost three years,
Defendant has flouted this Court’s orders many times despite being
provided with numerous opportunities to participate in the
5

litigation of Plaintiff’s claims against her, including before
this Court and through a neutral mediator. 2
(4) As the procedural history of the case and Defendant’s
years of dilatory - and at times obstructionist - conduct shows,
Defendant’s actions have been willful and in bad faith.
(5) Effectiveness of sanctions other than dismissal:

No

sanction other than default judgment entered in Plaintiff’s favor
would be effective.

The Court has issued numerous orders to

Defendant to compel her participation in the litigation and
mediation, and has held Defendant in contempt of those orders when

2

In a March 28, 2017 letter from the mediator to this Court, the
mediator reported that “efforts to achieve a settlement have been
unsuccessful, but I have continued to maintain communication with
both parties. In an email I received from [defendant], Charlotte
Williams, earlier this month, Ms. Williams questioned my
neutrality as a mediator, and suggested that I made statements to
her which led her to that conclusion. I will reserve any comment
on the accuracy of Ms. Williams’ assertions. I thought it
appropriate and indeed necessary for me to advise the Court of
this communication.” (Docket No. 223.) Defendant responded to
the mediator’s letter in an April 3, 2017 letter, in which she
contended that her health conditions continue to affect her
ability to defend herself, that Plaintiff’s counsel threatened
her, and that the mediator called her a liar. (Docket No. 224.)
Plaintiff’s counsel refuted Defendant’s accusations about himself
and the mediator in an April 4, 2017 letter, noting that “we have
never seen any evidence of partiality by the Court-appointed
mediator,” as he “has, at all times, acted professionally and
courteously to all involved in the case,” and “[t]o his credit, he
has continued to work with Ms. Williams despite her continued
refusal to engage in any meaningful settlement discussions.”
(Docket No. 221) There is no basis to contest the neutrality of
the court-appointed mediator in this matter whose service to the
Court and the parties is appreciated. Plaintiff’s unfounded
allegations and scurrilous allegations are yet another example of
what is a clear and intentional pattern of delaying and
frustrating the orderly progression of this litigation.
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she has repeatedly failed to comply.

Even after the Court found

Defendant in default and indicated its intention of entering
default judgment against her, Defendant continued to ignore the
Court and regurgitate the same unsupported excuses.

Despite the

Court’s every effort to provide Defendant with her right to a jury
trial, and, when that failed, facilitating a neutral mediator to
resolve the dispute, it is clear that default judgment against
Defendant is the only available remedy to Plaintiff.
(5) Meritoriousness of Defendant’s defenses:

Because

Defendant has disregarded this Court’s numerous orders and has
failed to participate in good faith in the litigation process or
the alternative of court-sanctioned mediation, the Court is unable
to fully assess the merit of Defendant’s defenses to Plaintiff’s
claims against her.

Prior to the mistrial, the Court considered

Defendant’s arguments, ruled on substantive motions in which she
presented her defenses, and preserved her defenses after the
mistrial by ordering mediation where a neutral arbiter would hear
her defenses and consider their merit. There is, however, only so
much this Court can do.

Defendant’s unwillingness to contest this

matter on the merits at every turn compels the conclusion that
Defendant’s defenses are lacking in merit.
For the same reasons, Defendant has not demonstrated the
grounds for relief from the Court’s orders under any of the six
options provided by Rule 60(b).
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2.

Scope of Judgment and Damages

With regard to the determination of the scope of the judgment
and the assessment of Plaintiff’s damages, the Court “may conduct
hearings . . . when . . . it needs to:

. .. (B) determine the

amount of damages; . . . ,” Fed. R. Civ. P. 55(b)(2), and “the
‘hearing’ may be one in which the court asks the parties to submit
affidavits and other materials from which the court can decide the
issue.” Smith v. Kroesen, 2015 WL 4913234, at *5 (D.N.J. 2015)
(citing Jonestown Bank and Trust Co. v. Automated Teller Mach.,
Services, Inc., 2012 WL 6043624, *4 (M.D. Pa. 2012) (citing 10
James Wm. Moore, et al., Moore's Federal Practice § 55.32[2][c]
(Matthew Bender ed. 2010)).
Plaintiff claims the following allegations in its amended
complaint (Docket No. 174) against Defendant, which will be deemed
admitted.

See Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d

Cir. 1990) (providing that in considering default judgment, every
“well-pled allegation” of the complaint, except those relating to
damages, are deemed admitted):
Defendant breached the September 15, 2008 settlement
agreement entered between Plaintiff and Defendant to settle
prior litigation regarding certain trademarks and copyrights
by “using a mark or symbol likely to cause confusion with
PIANO WELLNESS marks . . . and represent[ing] to any party
that she owns rights to said marks. . .”; by failing and
refusing to assign to WELLNESS her undisclosed domains “that
are likely to create confusion with the PIANO WELLNESS mark
and domain,” including, but not limited to
www.keyboardwellness.com; by continuing to assert that she
has right as a shareholder of PWEC; by failing to return and
subsequently sell DVDs in violation of Sections 10 and 11 of
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the Settlement Agreement; by disparaging WELLNESS in
violation of Section 13 of the Settlement Agreement; and by
asserting claims against WELLNESS that are barred by Section
2 of the Settlement Agreement.
(Amended Compl., Docket No. 174 at 8-9.)
Plaintiff seeks the following relief for its damages:
A. Awarding compensatory damages in favor of WELLNESS and
against WILLIAMS; and
B. Entering a preliminary and permanent injunction
restraining WILLIAMS, together with their officers,
employees, agents, successors and assigns or others acting in
concert with her, from using the trademark “KEYBOARD
WELLNESS.COM” or any trademark likely to cause confusion with
WELLNESS’ trademarks; and
C. Directing WILLIAMS to assign the domain
www.keyboardwellness.com to WELLNESS, as well as other
domains which she owns that are likely to create confusion
with the PIANO WELLNESS mark and domain; and
D. Directing WILLIAMS to return all copies of the DVDs
described in Section 10. and 11. of the Settlement Agreement;
and
E. Directing WILLIAMS to comply with Section 13 of the
Settlement Agreement; and
F. Declaring that WILLIAMS can no longer assert claims
against WELLNESS for trademark or copyright infringement, or
any other claims on account of or which grew out of the
[Earlier Litigation] including, without limitation, any and
all known or unknown claims which resulted or may thereafter
resulted from [the Earlier Litigation] excepting only claims
for breach of the Settlement Agreement; and
G. Entering a preliminary and permanent injunction
restraining WILLIAMS, together with their officers,
employees, agents, successors and assigns or others acting in
concert with her, from asserting claims against WELLNESS for
trademark or copyright infringement, or any other claims on
account of or which grew out of the [Earlier Litigation]
including, without limitation, any and all known or unknown
claims which resulted or may thereafter resulted from [the
Earlier Litigation] excepting only claims for breach of the
9

Settlement Agreement; and
H. Awarding of attorneys’ fees and costs pursuant to
WELLNESS.
(Amended Compl., Docket No. 174 at 9-11.)
The Court finds that the facts contained in Plaintiff’s
amended complaint, supplemented with a certification of
Plaintiff’s principal, Sheila Page, (Docket No. 207-2 at 12-90),
and deemed admitted to by Defendant, support a finding that
Defendant breached the parties’ settlement agreement.

See Nolan

by Nolan v. Lee Ho, 577 A.2d 143, 146 (N.J. 1990) (“A settlement
agreement between parties to a lawsuit is a contract.”); Sery v.
Federal Business Centers, Inc., 616 F. Supp. 2d 496, 507 (D.N.J.
2008) (discussing New Jersey law) (explaining that to prove a
breach of a contract, a plaintiff must show that a valid agreement
existed, defendant materially breached the terms of the agreement,
and plaintiff suffered damages as a result of the breach).
The Court further finds that Plaintiff is entitled to the
declaratory and injunctive relief it requests.

See Totaro, Duffy,

Cannova and Company, L.L.C. v. Lane, Middleton & Company, L.L.C.,
921 A.2d 1100, 1107 (N.J. 2007) (citation omitted) (“Judicial
remedies upon breach of contract fall into three general
categories: restitution, compensatory damages and performance . .
. Restitution returns the innocent party to the condition he or
she occupied before the contract was executed[;] compensatory
damages put the innocent party into the position he or she would
10

have achieved had the contract been completed[;] performance makes
the non-breaching party whole by requiring the breaching party to
fulfill his or her obligation under the agreement.”).
Plaintiff requests $75,000 in compensatory damages, where
Page’s certification states that because of Defendant’s breach,
Plaintiff suffered a loss of $25,807.00 instead of an expected
profit of $30,000 to $40,000, totaling a $50,000 loss in 2009, and
that in 2011, Plaintiff suffered another $25,000 in damages.

The

Court finds that Plaintiff is entitled to compensatory damages,
but the Court also finds that Plaintiff’s claim of $75,000 in
losses is unsupported by any documentary evidence, which is
insufficient to establish damages on default judgment for breach
of contract.

See Paniagua Group, Inc. v. Hospitality Specialists,

LLC, 183 F. Supp. 3d 591, 606 (D.N.J. 2016) (finding insufficient
the evidence to support claim for damages for a default judgment
on a breach of contract claim where the plaintiff only submitted
an affidavit that simply stated that defendants owed $255,415.05,
noting that the plaintiff did not provide any invoices or other
documentary evidence to support its damages claim with respect to
the amount it was owed by defendants) (citing Mapssy Int'l, Inc.
v. Hudson Valley Trading Inc., No. 08–3037, 2012 WL 4889229, at *6
(D.N.J. Oct. 11, 2012) (concluding that the plaintiff had asserted
a specific damage amount based on a breach of contract but had
“not submitted documentation to support” the damages claim and
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that the court would only enter a damages judgment “[u]pon receipt
of memoranda and proof of [the] [d]efendant's outstanding
debts”)).
The Court also finds that Plaintiff is entitled to mediation
fees and attorney’s fees and costs that she incurred, as detailed
in Page’s certification, (Docket No. 207-2 at 53-90), as a
sanction for Defendant’s willful and culpable conduct, described
above and further evidenced by the record.

See Republic of

Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 (3d Cir.
1994) (“Our legal system will endure only so long as members of
society continue to believe that our courts endeavor to provide
untainted, unbiased forums in which justice may be found and done.
Thus, it is beyond peradventure that district courts have broad
authority to preserve and protect their essential functions . . .,
[and] district courts have tools available to protect their truthseeking process,” including numerous Federal Rules of Civil
Procedure, Congress-enacted laws, and a court’s inherent
authority.); see also Chambers v. NASCO, Inc., 501 U.S. 32, 45–46
(1991) (internal quotations, alterations, and citations omitted):
There are ample grounds for recognizing . . . that in
narrowly defined circumstances federal courts have inherent
power to assess attorney's fees against counsel, even though
the so-called “American Rule” prohibits fee shifting in most
cases. As we explained . . ., these exceptions fall into
three categories. The first, known as the “common fund
exception,” derives not from a court's power to control
litigants, but from its historic equity jurisdiction, and
allows a court to award attorney's fees to a party whose
litigation efforts directly benefit others. Second, a court
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may assess attorney's fees as a sanction for the “willful
disobedience of a court order.” Thus, a court's discretion
to determine the degree of punishment for contempt permits
the court to impose as part of the fine attorney's fees
representing the entire cost of the litigation. Third, . . .
a court may assess attorney's fees when a party has “acted in
bad faith, vexatiously, wantonly, or for oppressive reasons.”
In this regard, if a court finds that fraud has been
practiced upon it, or that the very temple of justice has
been defiled, it may assess attorney's fees against the
responsible party, as it may when a party shows bad faith by
delaying or disrupting the litigation or by hampering
enforcement of a court order. The imposition of sanctions in
this instance transcends a court's equitable power concerning
relations between the parties and reaches a court's inherent
power to police itself, thus serving the dual purpose of
vindicating judicial authority without resort to the more
drastic sanctions available for contempt of court and making
the prevailing party whole for expenses caused by his
opponent's obstinacy.
Even though Defendant’s conduct from the mistrial in November
2014 onward through today evidences habitual obstinate behavior,
and would support a finding that Defendant should be sanctioned
for all of Plaintiff’s attorney’s fees and costs from that time, 3
the Court finds a fair and reasonable sanction to be that

3

It must be reiterated that Defendant’s conduct compelled the
Court to hold her in contempt on March 3, 2016 for her continued
refusal to comply with the Court’s orders. Instead of appearing
at the contempt hearing, which was the second contempt hearing
Defendant failed to attend, or the hearing on April 4, 2016 with
regard to Plaintiff’s motion for default against Defendant,
Defendant retained counsel in New Jersey, even though she
repeatedly told the Court she did not have enough money to travel
to New Jersey and was living month-to-month (see Docket No. 182),
for the sole purpose of further delaying the proceedings (see
Docket No. 186, 193, 194). When that delay tactic failed, (see
Docket No. 195), the attorney moved to withdraw as Defendant’s
counsel because she terminated his representation (see Docket No.
196).
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Defendant pay Plaintiff for the expenses it outlaid for the
mediation 4 ($2,882.00), 5 as well as the attorney’s fees and costs
it incurred from the time Plaintiff notified the Court in March
31, 2015 that Defendant refused to participate in Court-ordered
mediation (Docket No. 146), through April 18, 2016, when Plaintiff
submitted her proofs regarding default judgment (Docket No. 201)
after the Court found Defendant to be in default (Docket No. 200)
($10,385.50). 6
CONCLUSION
Based on the foregoing, Defendant’s motion to vacate must be
denied, and Plaintiff’s motion for default judgment must be
granted.

Within 30 days, Plaintiff shall pay $2,882.00 to the

mediator, and $10,385.50 to Plaintiff’s counsel.
An accompanying Order and Order of Judgment will be entered
separately.

Date: June 29, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

4

The mediation costs are as of January 21, 2016. The mediator
continued to communicate with Defendant in an effort to resolve
the matter for over a year after that time. (See Docket No. 223.)
5

By this Court’s Order (Docket No. 148), Defendant was already
required to pay half of the total cost of mediation.
6

Plaintiff’s counsel notes in his certification that Plaintiff was
charged an hourly fee of $480.00 instead of his usual rate of
$685.00 per hour.
14