TBI UNLIMITED, LLC v. CLEAR CUT LAWN DECISIONS, LLC et al
OPINION. Signed by Judge Robert B. Kugler on 2/22/2016. (tf, )
NOT FOR PUBLICATION
(Doc. Nos. 136, 137)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
: Civil No. 1:12-cv-03355-RBK-JS
Clear Cut Lawn Decisions, LLC and ClearCut, Inc. :
and Michael David Kaizar and Patrice Kaizar
TBI Unlimited, LLC
KUGLER, United States District Judge:
This matter is before the Court on the motion for default judgment (Doc. No. 136)
of Plaintiff TBI Unlimited, LLC (“Plaintiff” or “TBI”) against Defendants Clear Cut
Lawn Decisions, LLC (“Clear Cut Lawn”) and ClearCut, Inc. (“ClearCut”) (collectively
“Corporate Defendants”) pursuant to Federal Rule of Civil Procedure 55(b)(2). Plaintiff
and Plaintiff’s Principal William Taylor (“Taylor”) also move to dismiss Corporate
Defendants’ Counterclaims against Plaintiff and Third-party Complaint against Taylor
(Doc. No. 137) pursuant to Federal Rule of Civil Procedure 41(b). For the reasons set
forth below, Plaintiff’s motion for default judgment is DENIED WITHOUT
PREJUDICE, and Plaintiff and Taylor’s motion to dismiss is GRANTED.
This suit arises out of Plaintiff’s breach of contract claim against the Corporate
Defendants.1 Plaintiff alleges that the Defendants had a contract with Safeguard
Properties, LLC according to which Defendants would provide lawn services for
foreclosed properties in several east coast states. (Second Amended Compl. (“Compl.”) ¶
17, Doc. No. 12.) The Corporate Defendants then subcontracted with Plaintiff to provide
those services to properties in New Jersey for the years 2010 and 2011. (Id. ¶ 19)
Apparently, Plaintiff performed under the Contract and received payment but only for the
work it performed in 2010—it did not receive any payment from Defendants for the work
performed in 2011. (Id. ¶¶ 25–31.) Plaintiff’s Complaint seeks $88,050.000 in damages
On April 22, 2013, the Corporate Defendants filed their Answer and asserted
Counterclaims against Plaintiff and a Third-Party Complaint against Plaintiff’s principal,
William Taylor (“Taylor”). (Doc. No. 25.) Plaintiff and Taylor successfully moved to
dismiss all claims contained in the Counterclaim and Third-Party Complaint except for
breach of contract and unjust enrichment. (See Doc. Nos. 62, 100.)
Defendants’ former counsel, on three separate occasions, moved to be relieved as
counsel. (See Doc. Nos. 67, 96, 124.) The Court denied the first two motions but
granted the third motion on November 6, 2014 after discovering that Defendants failed to
pay their attorney and that the attorney-client relationship had fallen apart. (Order at 4,
Doc. No. 121.) The Court informed all defendants that they would be deemed to be
This Court has jurisdiction pursuant to 28 U.S.C. § 1332. Also Defendants in this
action are Michael and Patrice Kaizar. However, Plaintiff’s motions relate only to the
proceeding pro se if new counsel did not appear on their behalf by December 15, 2014.
(Id.) The Court also put the Corporate Defendants on notice that they could not represent
themselves in federal court. (Id.) On February 23, 2015, Michael Kaizar informed the
Court that counsel for the Corporate Defendants would be making an appearance by the
end of the month. (Doc. No. 132.) That same day, a status conference was held in front
of Magistrate Judge Schneider, and no attorney made an appearance for Defendants. To
date, no attorney has entered an appearance on behalf of Corporate Defendants. (Pl.’s Br.
Plaintiff now moves for default judgment against the Corporate Defendants, and
Plaintiff and Third-Party Defendant Taylor seek dismissal of the Corporate Defendants’
respective counterclaims and third-party complaint against them.
MOTION FOR DEFAULT JUDGMENT
Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Court may, upon a
plaintiff’s motion, enter a default judgment against a properly served defendant who fails
to plead or otherwise defend an action. The Court should accept as true all well-pleaded
factual allegations in the complaint by virtue of the defendant’s default except for those
allegations pertaining to damages. Chanel, Inc. v. Gordashevsky, 448 F. Supp. 2d 532,
536 (D.N.J. 2008) (citing Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.
1990)). It also does not adopt Plaintiff’s legal conclusions because whether the facts set
forth an actionable claim is for the Court to decide. Doe v. Simone, No. 12-5825, 2013
WL 3772532, at *2 (D.N.J. July 17, 2013).
On June 3, 2015, the Clerk entered Default against Corporate Defendants
pursuant to Rule 55(a). (Doc. No. 135.) Plaintiff asserts a breach of contract claim based
on Defendants’ failure to pay Plaintiff the money it was allegedly due under the contract.
(Amended Compl. ¶¶ 19–31, Doc. No. 12.) Plaintiff seeks $88,050.00 in damages on the
contract plus pre- and post-judgment interest totaling approximately $8,237.50.2
To establish liability in New Jersey on a claim for breach of contract, Plaintiff
bears the burden of showing: “(1) a contract between the parties; (2) a breach of that
contract; (3) damages flowing therefrom; and (4) that the party stating the claim
performed its own contractual obligations.” Frederico v. Home Depot, 507 F.3d 188, 203
(3d Cir. 2007) (citing Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 210
F.Supp.2d 552, 561 (D.N.J.2002)). Whether a valid contract exists is a legal, not a
factual, determination. See ATACS Corp. v. Transworld Commc’ns,, 155 F.3d 659, 665
(3d Cir. 1998).
Here, however, the Court cannot determine the validity of the alleged contract
here because Plaintiff has not attached the relevant “Agreement” to its original or
amended complaints or its Motion for Default Judgment. See Sun Nat’l Bank v. Seaford
Specilaity Surgery Center, LLC., No. 13–5800 at *2 (D.N.J. Oct. 7, 2015) (requiring
plaintiff seeking default on a breach of contract claim to submit the loan and guaranty
agreements at issue); see also Giorgio Gori USA v. Coastal Recovery Corp., No. CIV.A.
11-4939 ES, 2014 WL 1050610, at *1 (D.N.J. Mar. 14, 2014) (noting that the plaintiff’s
first motion for default judgment was denied without prejudice because plaintiff failed to
provide a copy of the contract). Thus, because Plaintiff has not provided the Court with a
Plaintiff seeks pre-judgment interest at 2.5% from August 1, 2011, when payment was
due, through December 31, 2012, and at 2.25% from January 1, 2013 through July 31,
2015. (Pl.’s Br. 4.) Plaintiff is also seeking continuing post-judgment interest at 2.25%
until the Judgment is satisfied. (Id.)
copy of the parties’ Agreement or documentation supporting the validity of the
Agreement, Plaintiff’s motion for default is denied without prejudice.
Plaintiff’s motion for default judgment is also denied, in part, because Plaintiff
has not provided the Court with sufficient proof as to damages. As indicated supra, the
Court is not to accept as true allegations concerning damages. See Chanel, Inc., 448 F.
Supp. 2d at 536. To properly determine any amount of damages to which Plaintiff is
entitled, the Court must receive an affidavit justifying an award of damages and
explaining how those damages have been calculated. See Bryant v. Jackson, No. 132823, 2014 WL 4211243, at *2-3 (D.N.J. Aug. 25, 2014).
In sum, Plaintiff’s motion for default judgment is denied without prejudice. Any
subsequent motion for default judgment must be accompanied by the agreement (or other
documentary evidence) and an affidavit justifying his claim of liability and for an award
MOTION TO DISMISS
Plaintiff and third-party defendant Taylor seek dismissal of the Corporate
Defendants’ counterclaim and third-party complaint against them under Federal Rule of
Civil Procedure 41(b). Rule 41(b) permits a defendant to dismiss a claim or a plaintiff to
dismiss a counterclaim or cross-claim for failure to prosecute. In addressing a motion to
dismiss for failure to prosecute, courts in the Third Circuit are typically obligated to
evaluate the factors set forth in Poulis v State Farm Fire and Casualty Co., 747 F.3d 863,
868 (3d Cir. 1984). However, where “a litigant’s conduct makes adjudication of the case
impossible, such balancing under Poulis is unnecessary.” Sebrell ex rel. Sebrell v.
Philadelphia Police Dept., 159 Fed App’x 371, 373–74 (3d Cir. 2005) (citing Guyer v.
Beard, 907 F.2d 1424, 1429–30 (3d Cir. 1990)); see also Divito v. C.M.S. Dept., No. ,
2007 WL 756014, at *2 (D.N.J. Mar. 17, 2006) (noting that the Poulis analysis was
unnecessary where Plaintiff failed to comply with several Court Orders and participate in
discovery but finding the Poulis factors nevertheless satisfied).
Here, the circumstances are such that no extensive analysis under Poulis is
required. The Corporate Defendants have failed to obtain counsel, in violation of
Magistrate Judge’s Order, which prevents the case from moving any further. As
corporate entities, they cannot prosecute their counterclaims without counsel, and they
have given no indication in over a year that they are working to obtain counsel and
prosecute their counterclaims.
Nevertheless, the Court also finds that the Poulis factors, too, weigh in favor of
dismissal. Under Poulis, the Court must evaluate the following factors:
The extent of the party’s personal responsibility; (2) the 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 was willful or in bad faith; (5) the effectiveness of sanctions other
than dismissal, which entails an analysis of alternative sanctions; and (6)
meritoriousness of the claim or defense.
Poulis, 747 F.2d at 868. First, as just explained, Corporate Defendants bear responsibility
for the failure to prosecute their claims. Magistrate Judge Schneider ordered all
defendants in the case to obtain counsel by December 15, 2015, specifically putting the
Corporate Defendants on notice that they could not proceed without counsel. (Doc. No.
121.) To date, more than fifteen months later, no attorney has entered an appearance on
behalf of Corporate Defendants. (Pl.’s Br. 3.)
Second, Plaintiff is prejudiced by their adversaries’ failure to obtain counsel. The
law requires corporate entities to be represented by counsel, and therefore, Plaintiff has
no alternative means of vindicating its claim in the event they fail to do so. See Simbraw,
Inc. v. United States, 367 F.2d 373, 374 (3d Cir. 1966); Directv, Inc. v. Asher, No.
CIV.A. 03-1969, 2006 WL 680533, at *2 (D.N.J. Mar. 14, 2006).
Third, Corporate Defendants have demonstrated a history of dilatoriness and
willful disobedience over the course of this matter by failing to comply with the Court’s
Order. It has been approximately fifteen months since Magistrate Judge Schneider
ordered them to obtain counsel, and only one communication—more than twelve months
ago— has been made on their behalf. Moreover, they have failed to obtain counsel in the
face of Plaintiff’s multiple motions for default judgment and motion to dismiss.
The circumstances also lead the Court to believe that there are no effective
alternatives to dismissal. Given the Corporate Defendants year-long failure to obtain
counsel, the Court does not find that any financial sanctions would compel them to act
As such, the Court finds dismissal of the Corporate Defendants’ counterclaims
against Plaintiff and third-party complaint against Taylor appropriate.
Plaintiff’s Motion for Default Judgment is DENIED WITHOUT PREJUDICE.,
and its Motion to Dismiss is GRANTED.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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