MOL (AMERICA) INC. v. CAN-MED LINES (USA), INC. et al

Filing 29

MEMORANDUM OPINION/ORDER denying 27 Motion for Default Judgment without prejudice with leave to re-file; that, within thirty days from the date of this Order, Plaintiff shall file an amended complaint or a new motion for default judgment with evid ence establishing CSC-Lawyers Incorporating Service as proper legal agent of Defendant Can-Med Maritime, Inc. and Defendant Can-Med Lines (USA), Inc. under 46 C.F.R. § 515.24 at the time of service, or explaining why service was otherwise properly effectuated; etc. Signed by Judge Esther Salas on 6/23/14. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
MOL (AMERICA) INC.,
:
:
Plaintiff,
:
Civil Action No. 11-3884 (ES)
v.
:
:
MEMORANDUM OPINION
CAN-MED LINES (USA), INC., ET AL.,
:
& ORDER
:
Defendants.
:
__________________________________________:
SALAS, DISTRICT JUDGE
This action comes before the Court on the motion of Plaintiff MOL (America) Inc.
(“MOL”) for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2), and the Court,
having considered Plaintiff’s submissions, and it appearing that:
1. On July 6, 2011, Plaintiff commenced this civil action. (D.E. No. 1).
2. In the Complaint, Plaintiff named the following four Defendants: Can-Med Lines
(USA), Inc., Can-Med Lines (Canada) Inc., Can-Med Maritime, Inc., and Elie Ibrahim.
(Id.).
3. On January 10, 2012, Plaintiff purportedly served Defendants Can-Med Lines (USA),
Inc., Can-Med Lines (Canada) Inc., and Can-Med Maritime, Inc. by service to CSCLawyers Incorporating Service. (D.E. No. 6).
4. Plaintiff submitted no supporting exhibit showing that Defendant Elie Ibrahim
(“Ibrahim”) was formally served.
5. The time for answering the Complaint has expired, and Defendants have neither been
granted an extension of time within which to answer, nor interposed an answer or

otherwise responded to the Complaint.
6. On February 21, 2012, MOL sent the Clerk of the Court a letter requesting that default
be entered against three of the four Defendants: Can-Med Lines (USA), Inc., Can-Med
Lines (Canada), Inc., and Can-Med Maritime, Inc. (D.E. No. 7).
7. There was no request for entry of default against Ibrahim.
8. On February 22, 2012, the Clerk of Court entered default as to Can-Med Lines (USA),
Inc., Can-Med Lines (Canada) Inc., and Can-Med Maritime, Inc. (See D.E. dated
February 22, 2012).
9. On February 23, 2012, all four Defendants filed a motion to set aside default. (D.E. No.
8).
10. In that motion, Defendants argued that service of process was insufficient. (See D.E.
No. 8-2, Ibrahim Cert. ¶ 12).
11. In response, Plaintiff argued that “[p]ursuant to the FMC, the defendant(s) listed on
such tariff(s) their official agent for service information for the defendants, to wit: CSCLawyers Incorporating Services in California.” (D.E. No. 9 at 2). But, Plaintiff attached
no exhibit to support this statement.
12. On June 29, 2012, the Court granted Defendants’ motion to set aside default and
ordered Defendants to “file responsive pleadings within 15 days.” (D.E. No. 11).
13. Defendants, however, failed to file any responsive pleadings.
14. On August 29, 2012, counsel for all four Defendants filed a motion to withdraw. (D.E.
No. 17).
15. On October 11, 2012, the Court granted Defendants’ counsel’s motion to withdraw.
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(D.E. No. 19).
16. On January 24, 2013, Plaintiff filed a motion for default judgment against all four
Defendants. (D.E. No. 22). In this motion, Plaintiff failed to brief how service of
process was sufficiently provided. (Id.).
17. On September 27, 2013, the Court denied Plaintiff’s motion for default judgment
without prejudice. (D.E. No. 25). The Court further ordered Plaintiff to provide
evidence, or otherwise explain, why service was properly effectuated. (Id.). The Court
also ordered Plaintiff to either request a dismissal of this action with respect to Ibrahim
or properly serve him. (Id.).
18. On October 17, 2013, Plaintiff sought to dismiss the action against Ibrahim without
prejudice. (D.E. No. 26).
19. On October 17, 2013, Plaintiff filed the instant motion seeking default judgment as to
the remaining Defendants, specifically: Can-Med Lines (USA), Inc., Can-Med Lines
(Canada) Inc., and Can-Med Maritime, Inc. (D.E. No. 27).
20. On October 22, 2013, the Court dismissed the instant action as to Ibrahim without
prejudice. (D.E. No. 28).
21. “Before granting a default judgment, the court must determine: (1) whether there is
sufficient proof of service, (2) whether a sufficient cause of action was stated, and (3)
whether default judgment is proper.” Teamsters Health & Welfare Fund of Phila. &
Vicinity v. Dubin Paper Co., No. 11-7137, 2012 WL 3018062, at *2 (D.N.J. July 24,
2012) (internal citations omitted).
22. Regarding proof of service, Plaintiff submitted an exhibit that establishes “CSC3

Corporation Services, 2730 Gateway Oaks Drive, Suite 100, Sacramento, CA 95833”
as the legal agent for service of process of Defendant Can-Med Lines (Canada) Inc.
(D.E. No. 27, Cert. of Bryon Press, Ex. B, “Tariff Rule Information” at 2). Thus, service
to Can-Med Lines (Canada) Inc. is proper pursuant to Fed. R. Civ. P. 4(h)(1)(b) and 46
C.F.R. § 515.24.
23. However, Plaintiff failed to submit any evidence identifying the proper agent for
service of process for Can-Med Maritime, Inc. and Can-Med Lines (USA), Inc.
Plaintiff also did not brief any legal argument for why service to Can-Med (Canada)
Inc. should be imputed to the remaining Defendants.
24. Regarding whether a sufficient cause of action was stated, the Court finds that Plaintiff
failed to sufficiently state a cause of action upon which relief can be granted.
Specifically, Plaintiff did not attach any evidence establishing a contractual
relationship between the parties to its Complaint, (D.E. No. 1), or the instant motion,
(D.E. No. 27). Nor did Plaintiff brief an alternative theory for why a default judgment
should be granted.
25. Plaintiff failed to provide the Court with evidence from which damages flow. “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) (emphasis added)
(internal quotation marks omitted). Here, Plaintiff failed to provide the Court with
evidence of a contract from which damages flow or any other basis for claimed
damages.
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Accordingly, IT IS on this 23rd day of June, 2014,
ORDERED that, Plaintiff’s motion for default judgment, (D.E. No. 27), is DENIED
without prejudice with leave to re-file, and it is further
ORDERED that, within thirty days from the date of this Order, Plaintiff shall file an
amended complaint or a new motion for default judgment with evidence establishing CSCLawyers Incorporating Service as proper legal agent of Defendant Can-Med Maritime, Inc. and
Defendant Can-Med Lines (USA), Inc. under 46 C.F.R. § 515.24 at the time of service, or
explaining why service was otherwise properly effectuated. Plaintiff shall further brief what cause
of action supports the judgment Plaintiff seeks, as well as the proper amount of damages. Failure
to do so may result in a dismissal with prejudice.

/s/ Esther Salas
Esther Salas, U.S.D.J.

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