DAYBREAK EXPRESS, INC. et al v. VMG INVESTMENT & DEVELOPERS CO.

Filing 33

OPINION & ORDER granting in part and denying in part 32 Motion for Default Judgment; and Judgment in favor of Plaintiffs is hereby entered against Defendant in the amount of $56,499.51, plus prejudgment and post-judgment interest, and attorneys fees, in amounts to be determined, etc. Signed by Judge Stanley R. Chesler on 1/24/13. (jd, )

CLOSED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
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DAYBREAK EXPRESS, INC. et al.,
:
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Plaintiffs,
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v.
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VMG INVESTMENT &
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DEVELOPERS CO. ,
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Defendant.
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____________________________________:

Civil Action No. 11-2527 (SRC)

OPINION & ORDER

CHESLER, U.S.D.J.
This matter comes before the Court on the motion for entry of default judgment (Docket
Entry No. 32), pursuant to Federal Rule of Civil Procedure 55(b)(2), by Plaintiffs Daybreak
Express, Inc. and Daybreak Fast Freight, Inc. In brief, Plaintiffs seeks entry of judgment by
default as to Defendant VMG Investment & Developers Co. The motion for entry of default
judgment will be granted in part.
On a motion for default judgment, the well-pleaded facts in the Complaint are accepted as
true. “A consequence of the entry of a default judgment is that the factual allegations of the
complaint, except those relating to the amount of damages, will be taken as true.” Comdyne I,
Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990). Damages must still be proven.
As to damages, Plaintiffs point to the Rate Confirmation Agreement, which states that
liability for loss shall be the replacement cost. (Thor Aff. Ex. E.) Plaintiffs have submitted
evidence which shows a replacement cost of $44,499.51. Plaintiffs also seek damages for: 1)
“testing of material” at $8,250; 2) “overtime charges for replacement batch” at $12,000; and 3)

“estimated destruction cost” at $720. (Thor Aff. Ex. C.) Plaintiffs have given this Court no basis
to conclude that testing and destruction costs are within the scope of the replacement cost for the
loss. Nor have Plaintiffs submitted evidence to support the amount of the destruction cost.
Plaintiffs have documented the overtime charges for replacement, which are within the scope of
the replacement cost of the loss. Plaintiffs will be awarded replacement cost damages in the
amount of $56,499.51.
Plaintiffs also seek prejudgment interest, postjudgment interest, and attorney’s fees. “The
allowance of prejudgment interest is a matter of discretion for the trial court.” County of Essex
v. First Union Nat. Bank, 186 N.J. 46, 61 (2006). In this case, this Court finds that an award of
prejudgment interest is warranted, and it should be calculated using the method set forth in the
New Jersey Court Rule that sets prejudgment interest in tort actions, R. 4:42-11(b). As for postjudgment interest, in New Jersey, “[a]s a matter of historical practice, post-judgment interest is
routinely awarded.” Marko v. Zurich North American Ins. Co., 386 N.J. Super. 527 (N.J. Super.
Ct. App. Div. 2006). Post-judgment interest shall be awarded pursuant to 28 U.S.C. § 1961.
Plaintiffs are entitled to attorney’s fees pursuant to their tariff, and they may submit an affidavit
establishing those fees.
For these reasons,
IT IS on this 24th day of January, 2012,
ORDERED that Plaintiffs’ motion for entry of default judgment (Docket Entry No. 32),
pursuant to Federal Rule of Civil Procedure 55(b)(2), is GRANTED in part and DENIED in
part, and Judgment in favor of Plaintiffs is hereby entered against Defendant in the amount of
$56,499.51, plus prejudgment and post-judgment interest, and attorney’s fees, in amounts to be
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determined; and it is further
ORDERED that, within 7 days of the date of entry of this Order, Plaintiffs shall submit
affidavits which establish the amounts of prejudgment interest and attorney’s fees, in accordance
with this Opinion and Order.

s/ Stanley R. Chesler
Stanley R. Chesler, U.S.D.J.

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