ESTATE OF JAMES A. RUSSICK et al v. KOENIG et al
Filing
129
MEMORANDUM OPINION & ORDER denying without prejudice 127 Motion for Default Judgment. Signed by Judge Noel L. Hillman on 10/10/2019. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ESTATE OF JAMES A. RUSSICK,
GAIL RUSSICK, EXECUTRIX, GAIL
RUSSICK, INDIVIDUALLY,
1:13-cv-07773-NLH-AMD
MEMORANDUM
OPINION & ORDER
Plaintiffs,
v.
TOM KOENIG and ANNA MARIE
KOENIG, JOINTLY, SEVERALLY
AND IN THE ALTERNATIVE,
Defendants.
TOM KOENIG,
Cross-Claim
Plaintiff,
v.
ANNA MARIE KOENIG,
Cross-Claim
Defendant.
APPEARANCES:
RICHARD T FAUNTLEROY
RICHARD T. FAUNTLEROY, P.C.
1525 SOUTH MAIN ST.
PLEASANTVILLE, NJ 08232
On behalf of Plaintiffs
TOM KOENIG
11808 KINGSTON PIKE
SUITE 190
KNOXVILLE, TN 37934
Defendant/Cross-Claim Plaintiff appearing pro se
HILLMAN, District Judge
WHEREAS, this case 1 concerns $188,000.00 obtained by
Defendants Tom Koenig and Anna Marie Koenig, as husband and
wife, from Anne Marie Koenig’s parents in New Jersey in order to
build their home in Tennessee; and
WHEREAS, after Anna Marie Koenig’s father passed away, her
mother, Gail Russick, as executrix of James Russick’s estate,
filed suit against the Koenigs to recover the balance of what
she considers to be a loan, which was financed by a home equity
loan on the Russick’s New Jersey home; and
WHEREAS, on February 9, 2019, Plaintiffs’ claims against
Tom Koenig were settled, and on February 25, 2019, a judgment
was entered against Tom Koenig in the amount of $188,000; and
WHEREAS, previously, on February 19, 2016, Tom Koenig filed
a cross-claim against Anna Marie Koenig for
indemnification/contribution (Docket No. 29), 2 which he
1
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1332 because there is complete diversity of citizenship
between the parties and the amount in controversy exceeds
$75,000. Plaintiffs, Gail Russick and her late husband James
Russick, are citizens of New Jersey, see 28 U.S.C. § 1332(c)(2)
(the legal representative of the estate of a decedent is deemed
to be a citizen of the same state as the decedent), and
defendants Anna Marie Koenig and Tom Koenig are citizens of
Tennessee.
2
The current marital status of Tom Koenig and Anna Marie Koenig
is unknown to the Court.
2
reasserted on December 9, 2016 in response to Plaintiffs’
amended complaint (Docket No. 51); and
WHEREAS, Anna Marie Koenig never entered an appearance in
the action, and on June 27, 2016, Tom Koenig filed a request
that the Clerk enter default against Anna Marie Koenig, which
the Clerk did that same day; 3 and
WHEREAS, before the Court is Tom Koenig’s motion for
default judgment in the amount of $188,000 plus costs on his
cross-claim for indemnification/contribution against Anna Marie
Koenig (Docket No. 127); and
WHEREAS, under Federal Civil Procedure Rule 55, obtaining a
default judgment is a two-step process:
First, when a defendant
has failed to plead or otherwise respond, a plaintiff must
request the entry of default by the Clerk of the Court.
Civ. P. 55(a).
Fed. R.
Second, after the Clerk has entered the party’s
default, a plaintiff may then obtain a judgment by default by
either (1) asking the Clerk to enter judgment, if the judgment
is a sum certain, or (2) applying to the Court, Fed. R. Civ. P.
55(b); Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance
Club, 175 F. App’x 519, 521, n.1 (3d Cir. 2006); and
3
Plaintiffs have never pursued their claims against Anna Marie
Koenig. Anna Marie Koenig’s only participation in the matter
was her deposition, which, after she failed to appear at two
depositions, was finally taken on January 31, 2017.
3
WHEREAS, while Tom Koenig has satisfied the first step, he
has failed to meet the requirements of the second step; and
WHEREAS, Tom Koenig’s motion for default judgment asks the
Clerk to enter judgment in his favor in the amount of $188,000
plus costs because default has been entered against Anna Marie
Koenig, and she is not a minor, incompetent, or in military
service (Docket No. 127 at 6-7); but
WHEREAS, “[a]lthough the Court should accept as true the
well-pleaded factual allegations of the Complaint, the Court
need not accept the moving party’s legal conclusions or
allegations relating to the amount of damages.
Consequently,
before granting a default judgment, the Court must first
ascertain whether the unchallenged facts constitute a legitimate
cause of action, since a party in default does not admit mere
conclusions of law,” Chanel, Inc. v. Gordashevsky, 558 F. Supp.
2d 532, 535–36 (D.N.J. 2008) (citing Comdyne I, Inc. v. Corbin,
908 F.2d 1142, 1149 (3d Cir. 1990); Directv, Inc. v. Asher, No.
03–1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006) (citing
Charles A. Wright, Arthur R. Miller & Mary Kay Kane, 10A Federal
Practice and Procedure § 2688, at 58–59, 63 (3d ed. 1998)); and
WHEREAS, Tom Koenig seeks contribution/indemnification from
Anna Marie Koenig on Plaintiffs’ claims against them for breach
of contract, promissory estoppel, unjust enrichment, and fraud
in the entire amount of the settlement he entered into with
4
Plaintiffs, along with the costs he has incurred while defending
himself in this action; but
WHEREAS, Tom Koenig has not articulated any facts that
support his legal conclusion that Anna Marie Koenig is wholly
liable for that settlement amount, such that he is entitled to
judgment in his favor on his indemnification/contribution crossclaim against Anna Marie Koenig, see, e.g., Standard Fire Ins.
Co. v. MTU Detroit Diesel, Inc., 2010 WL 1379751, at *5 (D.N.J.
2010) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (explaining that even though indemnification and
contribution cross-claims do not need to contain detailed
factual allegations, they must set forth sufficient facts to
raise a party’s right to relief above the speculative level, and
finding that the defendant’s cross-claims consisted of nothing
more than a formulaic recitation of the elements of claims for
contribution and indemnification, and they “will not do”);
Davidson v. Cornerstone Bank, 2011 WL 677321, at *5 (D.N.J.
2011) (finding the cross-claim for indemnification and
contribution insufficient because it did not include any
averments detailing how or why the defendants were jointly
liable, and it did not identify any theory for why the crossclaimant is entitled to indemnification or contribution); cf.
Tefft v. Tefft, 471 A.2d 790, 795 (N.J. Super. Ct. App. Div.
1983) (explaining that the prerequisites for contribution are:
5
(1) entry of a judgment or verdict, (2) determination of
plaintiff's quantum of damages, and (3) the existence of
nonsettling defendants, and if only one defendant had settled,
the nonsettling defendant would not have a cross-claim for
contribution against the settling defendant, rather, there would
be a credit against the amount the nonsettling defendant would
otherwise have to pay on the verdict of that amount attributable
to the settling defendant’s percentage share of negligence or
responsibility as determined by the fact-finder); Polidori v.
Kordys, Puzio & Di Tomasso, AIA, 526 A.2d 230, 234 (N.J. Super.
Ct. App. Div. 1987) (“The allowance of contribution is founded
upon principles of equity to insure a fair and just division of
losses between responsible tortfeasors, and this right is only
enforceable after the tortfeasor seeking it has been legally
compelled to pay more than his equitable share of the
liability.”); 4 id. (providing that it is well-settled that to
establish a claim for common law indemnification, a defendant
must demonstrate that he was free of fault in the causing of the
plaintiff’s injury) (quoting Restatement, Restitution, § 96 at
4
The Court notes that Plaintiffs’ complaint sought $224,000 in
damages, plus interest and costs. Tom Koenig settled
Plaintiffs’ claims against him for $188,000, which was the loan
principal. If Plaintiffs pursued their claims against Anna
Marie Koenig, and she cross-claimed against Tom Koenig for
contribution, the amount of Tom Koenig’s settlement would serve
as a credit to Anna Marie Koenig’s liability.
6
418 (1937) (“A person who, without personal fault, has become
subject to tort liability for the unauthorized and wrongful
conduct of another, is entitled to indemnity from the other for
expenditures properly made in the discharge of such
liability.”)) (other citations omitted); and
WHEREAS, Tom Koenig has also failed to provide
documentation to quantify the costs he has incurred, for which
he seeks to hold Anna Marie Koenig responsible, see, e.g., Lurty
v. 2001 Towing & Recovery, Inc., 2019 WL 3297473, at *6 (D.N.J.
2019) (denying plaintiff’s motion for default judgment because
plaintiff did not provide sufficient proof to prove his damages,
including the lack of an affidavit of damages by plaintiff);
THEREFORE,
IT IS on this
10th
day of
October
, 2019
ORDERED that the MOTION for Default Judgment by TOM KOENIG
[127] be, and the same hereby is, DENIED WITHOUT PREJUDICE with
leave to renew a motion for default judgment consistent with
this Opinion and Order within 90 days; and it is further
ORDERED that if the motion is not renewed within 90 days
the Court will issue an Order to Show Cause as to why the matter
should not be dismissed for failure to prosecute.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
7
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