ATLANTIC CAPES FISHERIES, INC. v. GRAVES & SCHNEIDER INTL, LLC et al

Filing 10

MEMORANDUM OPINION AND ORDER Scheduling a proof hearing for Plaintiffs motion for default judgment on November 27, 2018 at 10:00 A.M., before the undersigned in Courtroom 4A. Directing Plaintiff to submit a supplementary brief no later than November 14, 2018. Signed by Judge Jerome B. Simandle on 10/24/2018. (rtm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ATLANTIC CAPES FISHERIES,
INC.,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 17-11479 (JBS/KMW)

v.
GRAVES & SCHNEIDER INTL, LLC
and MATTHEW SCHNEIDER

MEMORANDUM OPINION
AND ORDER

Defendants.
SIMANDLE, District Judge:
This matter comes before the Court by way of a motion for
default judgment filed by Plaintiff Atlantic Capes Fisheries,
Inc. (hereinafter “Plaintiff”). (See Motion for Default Judgment
(hereinafter “Pl.’s Mot.”) [Docket Item 9].) Default having been
entered as to all Defendants, Plaintiffs now seek default
judgment under Fed. R. Civ. P. 55(b). No opposition has been
filed with regards to Plaintiff’s present motion
1.

Plaintiff filed the Complaint herein on November 9,

2017, alleging that Defendants Graves & Schneider Intl, LLC and
Matthew Schneider (hereinafter, collectively, “Defendants”) are
liable for negligence (Count I), breach of contract (Count II),
violation of the New Jersey Consumer Fraud Act (Count III),
common law fraud (Count IV), breach of fiduciary duty (Count V),
and breach of bailment duty (Count VI). (See Complaint [Docket

Item 1].) The Complaint seeks monetary damages, including “such
other punitive, anticipatory, consequential and compensatory
damages, and reasonable attorneys’ fees and costs as this Court
may deem fit and proper.” (Id. at ¶¶ 61, 64, 69, 73; see also
id. at ¶¶ 46, 53.)
2.

Defendants were both personally served with process on

December 8, 2017. (See Summons Returned Executed [Docket Items 5
& 6].)
3.

Neither Defendant filed an Answer or otherwise

responded to the Complaint within 21 days of service, as
required by Rule 12(a), Fed. R. Civ. P., and no Defendant has
done so to date.
4.

Plaintiff filed for Entry of Default against

Defendants on February 6, 2018. (See Motion for Entry of Default
[Docket Item 7].) The Clerk of Court granted Plaintiff’s request
for Entry of Default on February 15, 2018. (See Clerk’s Entry of
Default, Feb. 15, 2018.)
5.

Plaintiff’s present motion was filed on March 6, 2018,

and seeks both partial default judgment for a sum certain and
the scheduling of a proof hearing with regards to other damages.
(See Pl.’s Mot. [Docket Item 9].) No opposition or other
response to the motion has been filed.
6.

The Court shall therefore convene a proof hearing upon

Plaintiff’s Motion for Default Judgment against all defendants

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who then remain in default, which will be scheduled before the
undersigned on November 27, 2018 at 10:00 A.M. The motion for
default judgment requires a proof hearing because it seeks
fraud-related damages and attorney’s fees and is not a mere
book-account contractual claim. FED. R. CIV. P. 55(b)(2). In
addition to the Certification of Brian McEwing [Docket Item 9]
and the documents attached to Mr. McEwing’s Certification, (see
Exhibit A [Docket Item 9-3]), the Court may need factual
testimony elucidating the role played by each Defendant giving
rise to its alleged liability.
7.

The Court also requests that Plaintiff address the

applicability of the New Jersey Consumer Fraud Act, N.J.S.A.
§§ 56:8-1, et seq. (hereinafter “NJCFA”), to the transaction at
issue in this case. Specifically, if Plaintiff continues to
pursue such a claim, the Court requests that Plaintiff submit a
supplemental brief addressing whether Plaintiff is a consumer
within the protection of the NJCFA, whether a commercial fishing
license is a consumer good for purposes of the NJCFA, and thus
the purchase of a commercial fishing permit by a commercial
fishing business from persons such as Defendants is the type of
transaction covered by the NJCFA. Plaintiffs’ supplemental
submission addressing the applicability of the NJCFA will be due
by no later than November 14, 2018.

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Accordingly, and for good cause shown;
IT IS this

24th

day of

October

, 2018, hereby

ORDERED that Plaintiff’s motion for default judgment shall
be scheduled for a proof hearing on November 27, 2018 at 10:00
A.M., before the undersigned in Courtroom 4A; and it is further
ORDERED that Plaintiff shall, by no later than November 14,
2018, submit a supplementary brief addressing whether the
purchase of a commercial fishing permit by a commercial fishing
business from persons such as Defendants is the type of
transaction covered by the New Jersey Consumer Fraud Act,
N.J.S.A. §§ 56:8-1, et seq.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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