TRAVELODGE HOTELS, INC. v. SHIVMANSI, INC. et al
OPINION fld. Signed by Judge Kevin McNulty on 5/14/15. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TRAVELODGE HOTELS, INC., a
Civ. No. 13-cv-2881 (KM)
SHIVMANSI, INC., a California
Corporation; NARENDRA PATEL, an
individual; and HASMUKH D.
PATEL, an individual,
KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on the unopposed motion of Plaintiff
Travelodge Hotels, Inc. (“THI”) for default judgment against Defendant
Shivmansi, Inc. (“Shivmansi”) pursuant to Fed. R. Civ. P. 55(b). (Dkt. No. 12)
For the reasons set forth below, I will enter a default judgment. THI is awarded
$112,458.08 in outstanding recurring fees. Twill also award $142,368.40 in
liquidated damages and interest, and $5,085.77 in attorneys’ fees and costs.
Post-judgment interest from this date will be awarded at the appropriate rate in
accordance with 28 U.S.C. § 1961.
THI is a Delaware corporation with its principal place of business in
Parsippany, New Jersey. (Compl., Dkt. No. 1, ¶1) Shivmansi is a corporation
incorporated in California with its principal place of business in Corona,
California. (Id. at ¶2) Shivmansi’s sole shareholders are Narendra Patel,
Hasmukh Patel, and Surendra Patel, all of whom are citizens of California. (Id.
at ¶J3-4). Only Narendra Patel and Hasmukh Patel (the “Patels”), however, are
named in this action.
On May 25, 2005, THI entered into a license agreement (the “License
Agreement”) with Shivmansi for the operation of a 45-room Travelodge guest
lodging facility located at 1701 West 6th Street in Corona, California (the
“Facility”). (P1. Aff. in Supp. of Mot. for J. by Default (“P1. Aff.”), Dkt. No. 12-3,
¶3) Shivmansi pledged to operate the Facility as a Travelodge hotel for a period
of 15 years. (Id. at ¶4). Under Section 7, Section 18, and Schedule C of the
License Agreement, Shivmansi was required to make periodic payments to THI
for, inter alia, royalties, system assessment fees, taxes, interest, and access to
its central reservation system (collectively, “Recurring Fees”). (Id. at ¶5) Section
7.3 of the Franchise Agreement stated that the interest on such Recurring Fees
would accrue at the rate of 1.5% per month for all payments past due. (Id. at
Section 9.1 of the License Agreement prohibits Shivmansi from
transferring its interest in the Facility without THI’s prior written consent. (Id.
at ¶9) Section 9.3 permits THI to withhold such consent unless both Shivmansi
and the transferee meet the conditions set forth in that provision. (License
Agreement, Section 9.3, Dkt. No. 19)
Section 11.2 lists the circumstances under which THI may terminate the
License Agreement. Those circumstances include when “a violation of Section 9
occurs, or a Transfer occurs before the relicensing process [described in
Section 9.3] is completed.” (Id. at 20) If the License Agreement is terminated
pursuant to Section 11.2, Section 13.2 provides that Shivmansi must pay “all
amounts owed to [THI]” no more than 10 days after termination. (Id. at 22) The
“amounts owed” include all “Recurring Fees on Gross Room Revenues accruing
while the Facility is identified as a ‘Travelodge.”’ (Id.) Additionally, under
Section 12, Yamuna is obligated to pay liquidated damages within 30 days after
termination in an amount equal to “the product of $2,000 multiplied by the
number of guest rooms [THI is] authorized to operate under.., this Agreement.”
Section 17.4 states that if legal action is necessary “to enforce this
Agreement or collect amounts owed under this Agreement,” then the “nonprevailing party will pay all costs and expenses, including reasonable attorneys’
fees.” (Id. at 27)
On the same day that THI executed the License Agreement with
Shivmansi, it also obtained a personal guaranty (the “Guaranty”) from
Narendra Patel, Hasmukh Patel, and Surendra Patel. (See Guaranty, Dkt. No.
12-3, at 44) All three guarantors assumed joint and several liability for
Shivmansi’s “unpaid or unperformed obligations” under the License Agreement.
The Alleged Defaults and Termination
THI alleges that on March 29, 2011, Shivmansi sold the Facility to a
third party without obtaining THI’s prior written consent as required by the
License Agreement. (P1. Aff., Dkt. No. 12-3, at
It appears that THI worked
with the buyer to secure its compliance with the terms of Section 9.3, but that
those efforts were fruitless, and that THI therefore withheld its consent to the
On June 3, 2011, THI sent the Patels a letter stating that, based on the
unauthorized sale of the Facility, THI had terminated the License Agreement as
of the date of the sale, March 29, 2011. (Id. at ¶14). The letter further stated:
While we have been working in good faith with your Buyer in an
effort to secure a long-term agreement to continue the Facility’s
affiliation with the Travelodge Chain, our efforts have not been
successful. We regret that the Facility will no longer operate as a
Travelodge facility and must now require you to fulfill the posttermination obligations set forth in the Agreement, including the
payment of liquidated damages.
As a result of your premature termination of the Agreement, you are
required to pay us liquidated damages in the amount of $90,000 as
provided in Section 12.1 of the Agreement. .You are also responsible
to pay all outstanding Recurring Fees and other charges within 10
days. We estimate that as of March 29, 2011, you owe us $78,313.46
in Recurring Fees.
(P1. Aff., Ex. B, Dkt. No. 46)
The Present Action
On June 18, 2014, THI voluntarily dismissed its claims against the
Patels. (Dkt. No. 11) On that same day, THI filed this motion for a default
judgment against Shivmansi in the amount of $259,912.25. Specifically, THI
seeks: (1) $112,458.08 in outstanding Recurring Fees; (2) $90,000 in liquidated
damages; (3) $52,368.40 in prejudgment interest on those liquidated damages;
and (4) $3,900 in attorneys’ fees and $1,185.77 in costs.
This Court has jurisdiction over this action pursuant to 28 U.S.C.
1332, as there is complete diversity of citizenship between the parties and the
amount in controversy exceeds $75,000.
The entry of a default judgment is “left primarily to the discretion of the
district court.” Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing
Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951)).
Because the entry of a default judgment prevents the resolution of claims on
the merits, “this court does not favor entry of defaults and default judgments.”
United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984).
Thus, before entering default judgment, the Court must determine whether the
“unchallenged facts constitute a legitimate cause of action” so that default
judgment would be permissible. DirecTV Inc. v. Asher, 2006 WL 680533, at *1
(D.N.J. Mar. 14, 2006) (citing Wright, Miller, Kane, 1OA Federal Practice and
Procedure: Civil 3d
§ 2688, at 58—59, 63).
“[D]efendants are deemed to have admitted the factual allegations of the
Complaint by virtue of their default, except those factual allegations related to
the amount of damages.” Doe v. Simone, 2013 WL 3772532, at *2 (D.N.J. July
17, 2013). While “courts must accept the plaintiff’s well-pleaded factual
allegations as true,” they “need not accept the plaintiff’s factual allegations
regarding damages as true.” Id. (citing Chariel, Inc. v. Gordasheusky, 558 F.
Supp. 2d 532, 536 (D.N.J. 2008)). Moreover, if a court finds evidentiary
support to be lacking, it may order or permit a plaintiff seeking default
judgment to provide additional evidence in support of the allegations. Id.
A. Prerequisites for Entry of Default Judgment
Before a court may enter default judgment against a defendant, the
plaintiff must have properly served the summons and complaint, and the
defendant must have failed to file an answer or otherwise respond to the
complaint within the 21-day period prescribed by the Federal Rules. See Gold
Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 18—19 (3d Cir. 1985); Fed. R.
Civ. P. 12(a).
Service of a corporate entity, such as Shivmansi, may be made by
delivering a copy of the summons and complaint to “an officer, a managing or
general agent, or any other agent authorized by appointment or by law to
receive service of process” or by following state law for serving a summons in
an action brought in courts of general jurisdiction where the district court is
located or where service is made. Fed. R. Civ. P. 4(h)(1). New Jersey law states
in relevant part that service on a corporation may be made:
[B]y serving a copy of the summons and complaint.. on any officer,
director, trustee or managing or general agent, or any person
authorized by appointment or by law to receive service of process on
behalf of the corporation, or on a person at the registered office of
the corporation in charge thereof, or, if service cannot be made on
any of those persons, then on a person at the principal place of
business of the corporation in this State in charge thereof, or if there
is no place of business in this State, then on any employee of the
corporation within this State acting in the discharge of his or her
N.J. Ct. R. 4:4-4(a)(6).
Here, THI successfully served Shivmansi on May 22, 2013. (Cert. of
Bryan Couch in Supp. of Mot. for J. by Default (“Couch Cert.”), Dkt. No. 12-2,
¶5, Ex. A; see also Dkt. No. 5) The time to respond to the Complaint has long
since expired. On June 18, 2014, the clerk entered default. (Dkt. No. 6)
Accordingly, I am satisfied that the prerequisites to filing a default judgm
are met. See Gold Kist, 756 F.2d at 18—19.
B. Three Factor Analysis
I must now evaluate the following three factors: (1) whether the party
subject to default has a meritorious defense, (2) the prejudice suffered by
party seeking default, and (3) the culpability of the party subject to default
Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171,
(D.N.J. 2008) (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d
Cir. 1987)). Those factors, considered in light of the record of this case,
favor of entry of a default judgment.
The evaluation of the first factor is impeded, of course, by the
Shivmansi’s failure to answer or oppose this motion. Nevertheless, my
independent review of the record does not suggest that the claims asserte
THI are legally flawed or that Shivmansi could mount a meritorious defens
See Doe, 2013 WL 3772532, at *5• Accepting the allegations in the Compl
as true, Comdyne j, Inc. u. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990),
that THI has stated a claim for relief.
The Complaint contains six causes of action, which boil down to a claim
that Shivmansi has breached the License Agreement. Under New Jersey
prima facie case for breach of contract requires that the plaintiff show:
contract between the parties; (2) a breach of that contract; and (3) damag
resulting from the breach. See Coyle v. Englander’s, 199 N.J. Super.
(App. Div. 1985); Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007).
Those elements are satisfied here.
The facts alleged in the Complaint, along with the declaration submitted
in support of the THI’s motion and the exhibits annexed thereto, establi
that the parties created a valid and enforceable contract in the form
License Agreement; (2) that Shivmansi breached the License Agreem
selling the Facility without THI’s consent; and (3) that THI accrue
d damages as
a result of this breach. In sum, the facts alleged by THI state a claim
contract against Shivmani. I cannot discern a meritorious defense to
from the record before me.
The second and third factors also weigh in favor of default. Shivmansi
was properly served on May 22, 2013—nearly two years ago—but
appear and defend itself in any manner. It is clear that THI has been
prejudiced by this dereliction because it has been “prevented from prosec
[its] case, engaging in discovery, and seeking relief in the normal fashion
Teamsters Pension Fund of Philadelphia & Vicinity v. Am. Helper, Inc.,
4729023, at *4 (D.N.J. Oct. 5, 2011) (finding that a defendant’s failure
answer prejudices the plaintiff). Additionally, unless there is eviden
ce to the
contrary, Shivmansi’s failure to answer the Complaint is sufficient
to prove its
culpability in the default. Id. In this case, “there is nothing before the
show that the Defendant’s failure to file an answer was not willful
Id. (citing Prudential Ins. Co. of America v. Taylor, 2009 WL 536043,
(D.N.J. Feb. 27, 2009) (finding that when there is no evidence that
defendant’s failure to answer the Complaint was due to something
its own willful negligence, the defendant’s conduct is culpable and
judgment is warranted).
Overall, then, each of the three factors support the entry of default
judgment against Shivmansi. I therefore find that default judgment
THI seeks an award of $259,912.25, which comprises the following
forms of monetary relief: (1) $112,458.08 in outstanding Recurring
$90,000 in liquidated damages; (3) $52,368.40 in prejudgment interest
those liquidated damages; and (4) $3,900 in attorneys’ fees and
I will grant THI’s request for the amount owed as Recurring Fees, as set
forth in Section 7, Section 18.4, and Schedule C of the License Agreement. The
itemized statement submitted in support of THI’s motion details unpaid
Recurring Fees dating back to December 2008. (See P1. Aff., at ¶15, Ex. C, Dkt.
No. 12-3, at 57). As of March 2011, the outstanding balance on the account
was $113,423.50. That amount includes interest, which accrued at the rate of
1.5% per month in accordance with Section 7.3. THI, however, only requests
$112,458.08. I cannot account for this discrepancy, and I will therefore use my
discretion to award the lower amount.
I will also grant THI’s request for $90,000 in liquidated damages and
$52,368.40 interest. These amounts are determined by Sections 12.1 and
Section 7.3 of the License Agreement.
Section 12.1 sets the amount of liquidated damages at the rate of $2,000
multiplied by the number of guest rooms in the Facility. The Facility contain
45 rooms, which yields a figure of $90,000.
Section 7.3 establishes a 1.5% interest rate on all unpaid sums owed to
THI. I agree with THI that this interest rate applies to the amount owed as
liquidated damages. (P1. Aff. ¶22) I also agree as to the date on which the
interest began to accrue: April 28, 2011 (i.e., 30 days after the date THI
terminated the License Agreement). (Id.) The amount of interest owed by
Shivmansi is calculated from that date through July 21, 2014, which was
return date for THI’s motion for default judgment. The $52,368.40 figure is
calculated by multiplying $90,000 by 18% per year, which equals $16,20
interest per year. That amount is then divided by 365 days to equal
interest per day. When the per diem interest of $44.38 is multiplied by 1,180
days—the number of days between the date of termination and the return
of the motion—the interest owed is $52,368.40. (Id.)
Finally, as to attorneys’ fees and costs, I adopt THI’s analy
sis. THI has
adequately documented its attorneys’ fees, which do not seem
disproportionate. (See License Agreement, Section 17.4, Dkt.
No. 12-3, at 26
(giving the prevailing party the right to recover reasonable attor
neys’ fees); P1.
Aff. ¶23; Couch Cert. ¶J9-1 1, Ex. B) I will therefore awar
d $3,900 and
$1,185.77 in attorneys’ fees and costs, respectively, for a total of
For the foregoing reasons, a default judgment will be entered
defendant Shivmansi and in favor of plaintiff Travelodge Hotels
, Inc., in the
total amount of $259,912.25, with post-judgment interest
from this date at the
appropriate rate pursuant to 28 U.S.C. 1961.
An appropriate order will issue.
Date: May 14, 2015
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