CUSTOM STORE FIXTURES, L.L.C. v. INDUSTRY OUTFITTERS, INC. et al

Filing 17

LETTER MEMORANDUM AND ORDER OF JUDGMENT. Judgment is entered in favor of CUSTOM STORE FIXTURES, L.L.C. against DANIEL GUTFREUND in the amount of $77,189.56 plus post-judgment interest; that Plaintiff shall serve a copy of this Order on Defendant within 10 days of the date of this Letter Order. Signed by Judge Freda L. Wolfson on 8/7/2012. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
[phone]
CH AM BERS O F

Clarkson S. Fisher Federal Building &
U.S. Courthouse
402 East State Street
Trenton, New Jersey 08608

FREDA L. W OLFSON
U N ITED STATES DISTRICT JU DG E

August 7, 2012

LETTER MEMORANDUM AND
ORDER OF JUDGMENT
Daniel Gutfreund
671 S. Bates St.
Birmingham, MI 48009
Carmine LoFaro
LoFaro & Reiser, LLP
55 Hudson St.
Hackensack, NJ 07601
Re:

Custom Store Fixtures et al v. Industry Outfitters et al, Civ. A. No.: 10-1924 (FLW)

Dear Mssrs. Gutfreund and LoFaro,
The Court is in receipt of Plaintiff Custom Store Fixtures, L.L.C.’s (“Plaintiff” or
“Custom Store”) Motion to Reopen and Enter Judgment by Reason of Default on Terms of
Settlement (“Motion”) as well as Defendant Daniel Gutfreund’s (“Defendant” or “Gutfreund”)
Opposition.1 The underlying dispute between the Plaintiff and Defendant Gutfreund and his
business Industry Outfitters was settled in July 2010. Plaintiff voluntarily dismissed the
remaining defendants. Industry Outfitters is no longer a going concern. Def. Opp. at ¶ 5. The
remaining parties filed a Stipulation of Settlement on August 25, 2010. Stipulation of
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Gutfreund, who is now pro se, served his Opposition on Plaintiff, but never filed
it with the Court. Plaintiff notified the Court of this and filed it on his behalf. Dkt. No. 15.

Settlement, Dkt. No. 11 (“Settlement”). The Settlement required Defendants to pay $50,000
total, with an initial payment of $6,500 and then 15 monthly payments of $2,900 from September
1, 2010, through November 1, 2011. The Settlement contained a provision where if Defendants
were late with a payment then the parties agreed to:
the entry of judgment individually, jointly, and severally, in the Action in the
amount of $102,898.04, plus post-judgment interest, counsel fees, and costs
incurred by Custom from the date of the default in connection with the entry and
collection of said judgment, less credits for any payments made by Gutfreund and
Industry Outfitters and cleared by Plaintiff’s counsel’s bank.
Settlement, ¶ 3. Gutfreund made the initial payment and monthly payments until March 2011,
when he paid only $500. Dkt. No. 14-1, Exhibit B. In total, he has paid $27,300. Id. Then
Gutfreund stopped making payments as required by the Settlement. Gutfreund does not dispute
the terms of the Settlement nor does he dispute that he stopped making payments. Def. Opp. at
¶¶ 4, 5. Rather he says that he was unable to continue making the payments and that he
attempted to renegotiate the Settlement, but that Plaintiff would not agree to his terms. Id.
Subsequent to filing the Motion, Plaintiff confirms that it did discuss modifying the Settlement
with Gutfreund and offered to reduce the payments to $1500, but that Gutfreund still refused
saying that it was too high. In any event, there is no dispute that Gutfreund is in violation of the
Settlement. Therefore, Plaintiff’s Motion to Reopen the Case to Enter Judgment will be granted.
Plaintiff has calculated interest from default at a rate of $0.54 a day and costs of $41.52 for
copying and mailing.
In addition, Plaintiff moves for counsel fees. Initially, Plaintiff’s counsel sought a third
of the amount remaining to be collected as it took the case on contingency. This is incorrect.

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Under the terms of the Settlement, Plaintiff’s counsel is entitled to the reasonable fees it actually
incurred. After speaking with the Court, counsel appears to understand this is the correct
approach and Mr. LoFaro, who is now handling this matter for Plaintiff, submitted a revised
Certification of Services regarding its Motion. Dkt. No. 16 (“LoFaro Certification”). William
LaTourette, Esq., and Melanie R. Costantino, Esq. handled the drafting and filing of the Motion
and related papers. Mr. LaTourette spent 2.4 hours at a rate of $325 an hour and Ms. Costantino
spent 3.1 hours at a rate of $250 hours. The Court finds that the time spent and the hourly rates
are reasonable considering the nature of this matter and awards attorney’s fees in the amount of
$1550.00.2
Based on the above, as well as the Court having considered the Motion pursuant to
F.R.C.P. 78, and for good cause shown, it is on this 7th day of August, 2012:
ORDERED that this matter is reopened for the limited purpose of entering judgment;
ORDERED that judgment is entered against Defendant for a total of $77,189.563 plus
post-judgment interest; and
ORDERED that Plaintiff shall serve a copy of this Order on Defendant within 10 days of

2

Mr. LaTourette left the law firm handling Plaintiff’s matter and Mr. LoFaro had to
take over the file and respond to several issues raised by the Court. Therefore, in his certification,
Carmine LoFaro, Esq., explains he spent 2.1 hours at a rate of $500. However, the Motion had
already been filed by the time Mr. LoFaro took over the matter. This time was spent by Mr.
LoFaro acquainting himself with the file as well as providing the Court with the attorney fee
information that should have been provided in the first instance. I do not find that Plaintiff’s
counsel is entitled to fees for Mr. LoFaro’s time.
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This total represents the $102,898.04 Settlement Amount less $27,300 already
paid, plus $41.52 in costs and $1550.00 in attorney fees.
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the date of this Letter Order.
Very Truly Yours,
/s/ Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.

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