ARNOLD TRANSPORTATION SERVICES, INC. v. FRAMAUR ASSOCIATES, LLC

Filing 48

OPINION filed. Signed by Judge Freda L. Wolfson on 1/3/2017. (mps)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
Civil Action No. 14-4280 (FLW) (LHG)
ARNOLD TRANSPORTATION
:
SERVICES, INC.
:
:
OPINION
Plaintiff,
:
:
v.
:
:
FRAMAUR ASSOCIATES, LLC,
:
:
Defendant.
:
___________________________________ :
Hon. Freda L. Wolfson, U.S.D.J.:
Before the Court is the motion of Arnold Transportation Services, Inc. (“Plaintiff” or
“Arnold”) for summary judgment on its Complaint for breach of contract against Framaur
Associates, LLC (“Defendant”), seeking $1,368,398.01 in compensatory damages, plus sanctions
in the form of attorney’s fees and costs under Fed. R. Civ. P. 11(b). Plaintiff contends that
Defendant failed to pay for transportation services rendered and invoiced to Defendant pursuant
to the parties’ agreement and engaged in bad faith delay in proceedings before this Court.
Defendant does not oppose the motion. For the reasons set forth below, the Court grants
Plaintiff’s motion on its breach of contract claim and will enter judgment in the amount of
$1,368,398.01 plus prejudgment interest in the Order to follow; Defendant’s counterclaims are
dismissed; and Plaintiff’s request for Rule 11(b) sanctions is denied without prejudice, with leave
granted to file a separate motion within 30 days of this Opinion and the Order to follow.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
Plaintiff Arnold is a tractor-trailer shipping carrier and Defendant Framaur is a shipping
broker. In or around August 2012, Arnold and Framaur entered into a dedicated shipping
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agreement (the “Agreement”). Plaintiff’s Statement of Undisputed Material Fact (“Statement”), ¶
5; Bretl Decl. at ¶ 5 and Ex. 2. The Agreement sets forth the terms under which Arnold was to
ship MillerCoors beer from Elkton, Virginia, and Eden, North Carolina, to a number of locations,
primarily in New Jersey and New York. Statement at ¶¶ 7-8; Bretl Decl. at ¶ 6. Under the
Agreement, Arnold was required to dedicate certain of its tractors and trailers for Framaur’s
exclusive use in shipping the beer. Bretl Decl. at ¶6. Arnold was required to dedicate five tractors
and 15 trailers to the Elkton, Virginia, route, providing a capacity of 15 loads per week, and to
dedicate 10 tractors and 30 trailers to the Eden, North Carolina, route, providing a capacity of 30
loads per week. Statement at ¶¶ 7-8. The standard practice in such “dedicated equipment”
contracts is that the broker or customer, in this case Framaur, dictates how the dedicated
equipment will be used by the carrier, in this case Arnold, who is obligated to make the
equipment available to the broker or customer. Bretl Decl. at ¶ 13. The Agreement governs only
the 15 tractors and 45 trailers dedicated by Arnold to Framaur. Id. Accordingly, although the
Agreement does not preclude Framaur from requesting additional equipment from Arnold over
and above the dedicated equipment, it does not supply the terms under which such equipment
would be provided, which would have to be negotiated separately. Id.
The Agreement went into effect on September 1, 2012. Statement at ¶ 5; Bretl Decl. at
Ex. 2. From its original effective date until in or around March 2014, the Agreement provided
that Framaur would be billed by Arnold for the use of Arnold’s tractors and trailers based on the
mileage driven at a rate of $1.40 per mile. Statement at ¶ 10; Bretl Decl. at ¶ 8. The Agreement
also provided that Framaur would be charged for a minimum of 2,350 miles per tractor per week,
regardless of the actual mileage driven. Statement at ¶ 9; Bretl Decl. at ¶ 8. This provision
reflected the fact that Arnold had “dedicated” the tractors and trailers to Framaur, such that they
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could not be made available to other customers, even if Framaur, who was empowered to dictate
how the tractors and trailers would be used, did not in fact use them in a given week or used
them in a limited manner. Statement at ¶ 6. Payment was to be made within 45 days of receipt of
an invoice for services. Id. at ¶ 14.
In addition to the mileage charge, the Agreement provided that Framaur was responsible
for other charges and expenses associated with the operation of the tractors and trailers,
including tolls and a fuel surcharge. Bretl Decl. at ¶ 9.
Because the Agreement was a “dedicated equipment” contract, it also provided that
Framaur was responsible for the round trip of each Arnold tractor-trailer making the beer
deliveries. Statement at ¶ 11; Bretl Decl. at ¶ 10. Under standard, non-dedicated contracts, the
broker or customer pays only for the mileage traveled while the goods are being transported from
their origin to their destination. The customer does not pay for the tractor-trailer’s return trip to
its origin point or base. Under dedicated equipment contracts, the broker or customer pays a
reduced mileage rate, but must pay for both legs of the tractor-trailer’s trip. Because of this
responsibility, dedicated equipment contracts, including the Agreement, grant the broker or
customer the right to transport a second load of goods from at or around the destination point
back to the at or around the origin point on any given return trip. If the broker or customer opts
to have the tractor-trailer transport such goods on the return trip, they are referred to as a
“backhaul load.” Bretl Decl. at ¶ 10.
Under the Agreement, backhaul loads were contracted at Framaur’s discretion. Statement
at ¶ 12. If Framaur itself arranged for a backhaul load, it would receive 100% of the revenue
from the customer paying to have goods transported by the Arnold tractor-trailer on its return

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trip. Bretl Decl. at ¶ 11. If Arnold arranged for a backhaul load for Framaur, Framaur received
90% of the revenue from the return trip, with the 10% going to Arnold as a finders’ fee. Id.
The Agreement was originally set to terminate on September 6, 2015. Bretl Decl. at Ex.
2. On March 19, 2014, Arnold 1 reached out to Framaur to explain that Arnold required a per mile
price increase in order to make a profit. Statement at ¶ 22; Bretl Decl. at ¶ 14. On March 20,
2014, Arnold proposed in an e-mail to amend the Agreement to increase the mileage charge from
$1.40 to $1.70 per mile for the dedicated equipment. Statement at ¶ 23; Bretl Decl. at ¶ 14. On
March 27, 2014, Arnold sent another email clarifying that the 2,350 mile weekly minimum
would remain in place if the $1.70 per mile price were agreed upon. Statement at ¶ 24; Bretl
Decl. at ¶ 15. On March 28, 2014, Framaur 2 responded to Arnold’s e-mail and proposed new
contract terms, including the following:
20 trucks $1.70 per mile 2350 miles
10-15 OTR loads during peak season upon request (2 weeks notice) pricing submitted
previously
3 to 1 trailer pool
Framaur 100% on backhauls secured
80/20 split on Arnold secured backhauls
Payment 60 days (POD’s must be received)
Comments: Need newer tractors and commitment to improve overall service and
communication previously discussed.

Bretl Decl. at Ex. 3.

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The e-mails were sent by Arnold Chief Financial Officer, JP Bretl.
The e-mails were sent by Framaur Vice President Tom D’Agostino, Jr.
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On March 29, 2014, Arnold responded, again by e-mail, stating “i will get document
drafted asap.” Id. Arnold also stated that it would make 20 tractors available to Framaur as of
“monday” (the next Monday after Arnold’s email being March 31, 2014) and that pricing would
be “$1.70 as of monday.” Id. at ¶ 15. Ex. 3; Statement at ¶¶ 26-27. Framaur did not object to
Arnold’s statement that the new price would go into effect on the coming Monday. Bretl Decl. at
¶ 15. Arnold began sending Framaur invoices reflecting the new, $1.70 price shortly thereafter.
Framaur did not raise the issue of price or object to the $1.70 per mile price until shortly before
July 8, 2014, when the Complaint in this action was filed. Bretl Decl. at ¶ 16.
Arnold’s standard billing practice with Framaur was to send Framaur a spreadsheet each
week invoicing the mileage fees and other expenses that had been incurred that week and
updating Framaur’s total outstanding obligation to Arnold. Bretl Decl. at ¶ 17. Beginning in
February 2014, Arnold and Framaur engaged in regular conference calls, usually held on a
weekly basis, to review the week’s spreadsheet. Id. at ¶ 18. During these calls, Framaur raised
only one objection to the charges that had been invoiced; Framaur claimed that Arnold billed
Framaur for weekly minimum mileage on tractors that were not in fact available for Framaur’s
use in the preceding week. The parties referred to these disputed charges as “deficit miles.” Prior
to the initiation of this litigation, and without conducting a full investigation into the “deficit
mileage” claim, Arnold agreed with Framaur to discount the amount of the unpaid invoices by
$112,331.80 to resolve Framaur’s objection. Id.; Statement at ¶ 2.
From November 2012 to April 2014, Defendant Framaur Associates, LLC (“Framaur”)
failed to pay $1,480,729.80 invoiced by Plaintiff Arnold. Statement at ¶1; Bretl. Decl. ¶¶ 3-4, 20,
Ex. 1A. Accounting for the $112,331.80 deduction to resolve the “deficit mileage” issue,
$1,368,398.01 remains outstanding. Statement at ¶ 2; Bretl Decl. at ¶ 20, Ex. 1A. Of that total,
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$1,134,231.23 originated from invoices that were entirely unpaid by Framaur. Statement at ¶ 3;
Bretl Decl. ¶¶ 3-4, Ex. 1A. The remaining $234,166.78 originated from invoices that Framaur
partially paid, but refused to pay in full. Statement at ¶ 4. The parties referred to these partial
payments as “short pays.” On May 19, 2014, Framaur objected to $63,933.81 of the short pays
on the grounds that Arnold had not reported the mileage properly. Bretl Decl. at ¶ 21. Framaur
has not provided any explanation for the remainder of the short pays. Id.
In an e-mail dated July 1, 2014, Framaur acknowledged that it owed $938,714.30 of the
$1,368,398.01 claimed by Arnold. Bretl Decl. at ¶ 22. Framaur disputed the remaining balance
on the grounds that (i) it never agreed to increase the per mile charge to $1.70 from $1.40 (a
$65,405.10 deduction); (ii) Arnold failed to provide proof of deliveries (“PODs”) for certain
shipments (a $119,782.01 3 deduction); and (iii) Arnold double-billed or overbilled Framaur on
certain occasions (a $74,263.63 deduction). Id. at ¶¶ 24-26.
Under the Agreement, either party could end the dedicated equipment relationship by
giving 90-days’ notice. Statement at ¶ 15; Bretl Decl. at ¶ 7. On April 17, 2014, Framaur sent
Arnold an e-mail stating that it was exercising its right to terminate the contract on 90-days’
notice. Statement at ¶ 32; Bretl Decl. at ¶ 34. On April 25, 2014, Arnold informed Framaur that it
owed in excess of $1 million for past due amounts and agreed that the relationship would be
terminated. Statement at ¶ 33; Bretl Decl. at ¶ 35. Arnold shipped its final load for Framaur on

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Defendant’s ledger reflects two rows setting forth payments made or to be made on
missing PODs followed by a third row stating the “Total Amount of missing POD’S never
billed.” From their captions, it is not clear whether the preceding two rows should have been
included within, rather than added to the “Total” set forth in the third row. In any case, however,
it is clear that Defendant deducted both the two payment rows and the “Total” row from the
amount owed Plaintiff. Plaintiff accordingly accepts Defendant’s $119,782.01 figure, which will
also be considered by this Court.
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April 27, 2014. Statement at ¶ 34; Bretl. Decl. at ¶ 36. To date, Framaur has not paid any of the
money claimed due to Arnold, including the supermajority of the invoices that Framaur does not
dispute.
On July 8, 2014, Plaintiff filed a two-count Complaint, alleging breach of contract and, in
the alternative, unjust enrichment. On August 18, 2014, Defendant moved to dismiss Plaintiff’s
unjust enrichment claim as barred by the existence of the express contract between the parties.
The Court granted Defendant’s motion and dismissed Plaintiff’s unjust enrichment claim in an
Opinion and Order dated March 31, 2015.
Prior to the Court’s decision, on February 17, 2015, Defendant answered the Complaint
and counterclaimed against Plaintiff for breach of contract and the implied covenants of good
faith and fair dealing, claiming damages arising from Plaintiff’s alleged failure to provide
services promised in the Agreement, improper billing for inactive tractors, and failure to provide
Defendant with 90-days’ notice of the cancelation of the Agreement. Plaintiff answered
Defendant’s counterclaim on March 13, 2015.
Between August 2015 and March 2016, the Court repeatedly extended discovery and
filing deadlines to allow for settlement negotiations between the parties. No settlement was
reached. In its interrogatory responses and in representations to Plaintiff’s counsel, Defendant
stated that it would provide a damages expert report to substantiate its answer and counterclaims.
Schmit Decl. at ¶ 8. No such report was provided. Id. After receiving two extensions of time,
Defendant agreed to produce a Rule 30(b)(6) witness to provide discovery on its answer and
counterclaims on July 14, 2016. Id. at ¶ 9. On July 13, 2016, Defendant informed Plaintiff that it
would not be providing the 30(b)(6) witness. Id. at ¶ 11.

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Plaintiff filed the present motion for summary judgment on July 22, 2016. In support of
its motion Plaintiff submitted a copy of its invoice spreadsheet ledger, setting forth the dates and
amounts of Plaintiff’s invoices to Defendant, adjusted for backhaul loads, credits, tolls, and other
charges as provided under the Agreement, along with declarations from JP Bretl, Plaintiff’s
CFO, and Joseph B. Schmit, Plaintiff’s counsel, attesting to the authenticity of Plaintiff’s
business records and setting forth prior communications with Defendant.
Defendant’s opposition was due on August 23, 2016, but no opposition was filed.
Plaintiff filed a letter brief in further support of its motion on August 30, 2016, requesting
judgment due to Defendant’s failure to oppose the motion. The Court contacted Defendant’s
counsel and requested that Defendant’s position on Plaintiff’s request be entered on the docket.
On September 14, 2016, Defendant, through counsel, filed a letter on the docket stating that
Defendant declined to submit any further pleadings or otherwise oppose the Plaintiff’s pending
summary judgment motion.
In the present motion, Plaintiff seeks summary judgment on its breach of contract claim
and an award of $1,368,398.01 in compensatory damages, plus pre-judgment interest, and
sanctions pursuant to Fed. R. Civ. P. 11(b) in the form of attorney’s fees and costs.
LEGAL STANDARD
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986). A factual dispute is genuine only if there is “a sufficient evidentiary basis
on which a reasonable jury could find for the non-moving party,” and it is material only if it has

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the ability to “affect the outcome of the suit under governing law.” Kaucher v. County of Bucks,
455 F.3d 418, 423 (3d Cir.2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed. 202 (1986). Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment. Anderson, 477 U.S. at 248. “In considering a motion for
summary judgment, a district court may not make credibility determinations or engage in any
weighing of the evidence; instead, the non-moving party's evidence ‘is to be believed and all
justifiable inferences are to be drawn in his favor .’ “ Marino v. Indus. Crating Co., 358 F.3d
241, 247 (3d Cir.2004) (quoting Anderson, 447 U.S. at 255)); see also Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Curley v.
Klem, 298 F.3d 271, 276–77 (3d Cir.2002).
The burden of establishing that no “genuine issue” exists is on the party moving for
summary judgment. Celotex, 477 U.S. at 330. “A nonmoving party has created a genuine issue of
material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir.2001). The non-moving party must
present “more than a scintilla of evidence showing that there is a genuine issue for trial.”
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.2005) (quotations omitted). Under
Anderson, Plaintiffs' proffered evidence must be sufficient to meet the substantive evidentiary
standard the jury would have to use at trial. 477 U.S. at 255. To do so, the non-moving party
must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial.” Celotex, 477 U.S. at 324 (quotations omitted); see also Matsushita, 475 U.S. at
586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir.1999). In deciding the merits of
a party's motion for summary judgment, the court's role is not to evaluate the evidence and
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decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).
If a non-movant fails to oppose the motion, Fed. R. Civ. P. 56(e) provides that the Court
may only grant the motion for summary judgment “if appropriate.” See, e.g., Anchorage Assocs.
v. V.I. Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990); Damiano v. Sony Music Entm't, 975
F.Supp. 623, 627 (D.N.J.1996) (granting summary judgment because defendant's argument was
unopposed, and thus no genuine issue of material fact was created). The motion is appropriately
granted when the movant is entitled to judgment as a matter of law. Anchorage Assocs., 922 F.2d
at 175. 4 When “the non-moving party fails to oppose the motion for summary judgment by
written objection, memorandum, affidavits and other evidence, the Court will accept as true all

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It is now well-established in this District that “[i]f a party fails to address the other party’s
properly supported assertion of fact, the court may consider ‘grant[ing] summary judgment if the
motion and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it ....’” Houston v. Twp. of Randolph, 934 F. Supp. 2d 711, 723 (D.N.J.
2013), aff'd, 559 F. App'x 139 (3d Cir. 2014) (quoting Fed. R. Civ. P. 56(e)). Indeed, “Local
Civil Rule 56.1(a) deems a movant’s statement of material facts undisputed where a party does
not respond or file a counterstatement.” Id. (citing L. Civ. R. 56(a)). The Courts in this district
interpret the Local Rule through the lens of the Third Circuit’s seminal decision in Anchorage
Assocs. There, the Third Circuit made clear that failure to dispute a party’s statement of material
facts “is not alone a sufficient basis for the entry of a summary judgment.” Anchorage Assocs. v.
Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). “There must, in addition, be
a finding that judgment for the moving party is ‘appropriate.’ Where the moving party has the
burden of proof on the relevant issues, this means that the district court must determine that the
facts specified in or in connection with the motion entitle the moving party to judgment as a
matter of law. Where the moving party does not have the burden of proof on the relevant issues,
this means that the district court must determine that the deficiencies in the opponent's evidence
designated in or in connection with the motion entitle the moving party to judgment as a matter
of law.” Id. See also Hawkins v. Globe Life Ins. Co., 105 F. Supp. 3d 430, 446 n.23 (D.N.J.
2015) (citing Anchorage Associates v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d
Cir. 1990) (“An unopposed motion is properly granted when the movant is entitled to judgment
as a matter of law. Thus, even though plaintiff did not formally oppose defendant's argument
defendant is not automatically entitled to summary judgment. It still must prove it is entitled to
the judgment.”).
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material facts set forth by the moving party with appropriate record support.” Carp v. IRS, No.
00–5992, 2002 WL 373448, at * 2 (D.N.J. Jan 28, 2002) (quoting Anchorage Assocs., 922 F.2d
at 175).
Even if a record contains facts that might provide support for a non-movant's position,
“the burden is on the [non-movant], not the court, to cull the record and affirmatively identify
genuine, material factual issues sufficient to defeat a motion for summary judgment.” Morris
Orman, No. 87–5149, 1989 WL 17549, at * 8 (E.D.Pa. March 1, 1989) (citing Childers v.
Joseph, 842 F.2d 689 (3d Cir.1988)); see also Atkinson v. City of Phila., No. 99–1541, 2000 WL
793193, at * 5 n. 8 (E.D. Pa. June 20, 2000), aff'd, 281 F.3d 218 (3d Cir. 2001). Accordingly,
because Defendant has declined to oppose Plaintiff’s motion for summary judgment, Plaintiff’s
statement of material facts is deemed admitted pursuant to Fed. R. Civ. P. 56(e).
ANALYSIS
I. Defendant’s Counterclaims
In its motion, Plaintiff moves for judgment on Defendant’s counterclaims, arguing that by
failing to produce either a 30(b)(6) witness or expert witness to substantiate Defendant’s
damages calculation, Defendant has effectively abandoned its counterclaims. Subsequently,
Defendant, through counsel has indicated that it will not submit further pleadings or oppose
Plaintiff’s summary judgment motion. Taken together, Defendant’s failure to participate in the
discovery process, to introduce evidence into the record in support of its counterclaims, and
Defendant’s unequivocal statement to the Court that it would not defend those claims against

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Plaintiff’s motion for summary judgment indicate that Defendant has abandoned its
counterclaims. Accordingly, Defendants’ counterclaims are dismissed. 5
II. Liability
In its Complaint, Plaintiff alleges that Defendant breached their Agreement by failing to
timely pay approximately $1.48 million in invoices for transportation services rendered. Compl.
¶ 2; Bretl Decl. at Ex. 1A. “To prevail on a breach of contract claim under New Jersey law, a
plaintiff must establish three elements: (1) the existence of a valid contract between the parties;
(2) failure of the defendant to perform its obligations under the contract; and (3) a causal
relationship between the breach and the plaintiff's alleged damages.” Sheet Metal Workers Int'l
Ass'n Local Union No. 27, AFL-CIO v. E.P. Donnelly, Inc., 737 F.3d 879, 900 (3d Cir. 2013).

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The Court observes that even had Defendant not formally abandoned its counterclaims,
the complete dearth of affirmative evidence that Defendant suffered any injury would
nevertheless defeat Defendant’s claims. “Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case’ when the nonmoving
party bears the ultimate burden of proof.” Singletary v. Pennsylvania Dep't of Corr., 266 F.3d
186, 193 n. 2 (3d Cir. 2001) (quoting Celotex, 477 U.S. at 325). Here, Plaintiff’s motion,
statement of fact, and supporting declarations contend that the record is devoid of evidence that
Defendant in fact suffered any economic loss or consequential damages as a result of Plaintiff’s
alleged breach of contract and of the duty of good faith and fair dealing. The Court’s own review
of the exhibits in the record has not uncovered any, rather finding only bare assertions of
expenditures made by Defendant to pay for various transportation services. Without more, the
Court could only speculate that such expenditures represent costs over and above those
contemplated in the Agreement. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57
(1986) (“The movant has the burden of showing that there is no genuine issue of fact, but the
plaintiff is not thereby relieved of his own burden of producing in turn evidence that would
support a jury verdict. Rule 56(e) itself provides that a party opposing a properly supported
motion for summary judgment may not rest upon mere allegation or denials of his pleading, but
must set forth specific facts showing that there is a genuine issue for trial. . . . [T]he plaintiff
[cannot] defeat the properly supported summary judgment motion . . . without offering any
significant probative evidence tending to support the complaint. . . . Instead, the plaintiff must
present affirmative evidence in order to defeat a properly supported motion for summary
judgment.”) (quotations omitted).
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Plaintiff’s statement of facts having been deemed admitted by operation of Rule 56(e); there is
no dispute that the Agreement was valid and in force for the period between November 2011 and
April 2014, when the $1.4 million in services were rendered. Bretl Decl. at Ex. 1A (showing
dates of unpaid and partially paid invoices); Ex. 2 (showing contract effective dates from
September 2012 to September 2015). Similarly, the facts support that Plaintiff provided over
$1.4 million in services under the Agreement which were invoiced to Defendant. Bretl Decl. at ¶
4 (certifying that the attached invoice spreadsheet ledger reflects the amount owed by Framaur to
Arnold for shipping services). The Agreement obligated Defendant to pay for these services
within 45 days of receipt. Statement at ¶ 14; Bretl Decl. at Ex. 2 (text of the Agreement). The last
date on which Plaintiff provided services to Defendant under the Agreement was April 27, 2015.
Id. at ¶ 34. Defendant had not paid the invoices as of the date of Plaintiff’s motion and no
evidence has been introduced to suggest that it has done so subsequently. Id. at ¶ 1. Defendant
therefore failed to perform under the Agreement, when it did not pay the invoices within 45 days
of receipt.
Under New Jersey law, “[t]he correct measure of damages for breach of contract is the
expectation measure or the ‘benefit of the bargain.’” B.F. Hirsch v. Enright Ref. Co., 751 F.2d
628, 634 (3d Cir. 1984). Plaintiff seeks to recover $1,368,398.01 of the approximately $1.48
million to which it was entitled under the contract, having previously agreed with Defendant to a
voluntary reduction in the amount due. Given that Plaintiff seeks to partially recover its
reasonable expectation of payment under the Agreement, there can be no doubt that Defendant’s
failure to pay directly caused Plaintiff’s claimed injury. Accordingly, summary judgment on
Plaintiff’s breach of contract claim is granted.
III. Damages
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Having found that Plaintiff is entitled to judgment as a matter of law, the Court next turns
to whether the evidence in the record supports Plaintiff’s claimed amount of damages. Plaintiff
seeks $1,368,398.01 in compensatory damages, plus pre-judgment interest, and sanctions
pursuant to Fed. R. Civ. P. 11(b) in the form of attorney’s fees and costs. Plaintiff has introduced
sufficient evidence supporting its compensatory damages claims, but has failed to show that an
award of sanctions is warranted in this case.
A. Compensatory Damages
1. Wholly Unpaid Invoices.
Plaintiff claims $1,134,231.23 in damages for invoices that Defendant failed to pay, and
provides a certified version of Plaintiff’s invoice spreadsheet ledger in support of its claims.
Statement at ¶ 3; Bretl Decl. at Ex. 1A. Of this sum, Defendant concedes that $938,714.30 was
owed. In a July 1, 2014 e-mail, Thomas D’Agostino, Jr., the Vice President of Defendant
Framaur, sent JP Bretl, the Chief Financial Officer of Arnold, Defendant’s spreadsheet ledger
collecting the Arnold-Framaur invoice information, which D’Agostino represented set forth the
amount Defendant owed Plaintiff. Bretl Decl. at Ex. 5. The ledger covers unpaid invoices subject
to the Agreement for the period between January 27, 2014, and April 27, 2014, and states that
Defendant owes Plaintiff $938,714.30. Id. at Ex. 5A.
The difference between Plaintiff’s ledger and Defendant’s ledger is accounted for by three
factors. First, Defendant deducts $119,782.01 from the total owed due on invoices for which
proofs of delivery or “PODs” were “missing.” Plaintiff’s undisputed facts, however, indicate that
all deliveries were made and properly invoiced, and that provision of PODs was not a
prerequisite for payment under the terms of the Agreement. Bretl Decl. at Ex. 2. In the absence

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of any opposition from Defendant, the Court cannot find that Defendant’s bare assertion of
missing PODs alone creates a dispute of material fact as to Defendant’s obligation to pay these
invoices. Accordingly, the record reflects that Defendant properly owed Plaintiff $119,782.01 for
the invoices for which Defendant claimed PODs were “missing.”
Second, Defendant deducts $65,405.10 on the basis that it never consented to the increase in
the mileage charge from $1.40 per mile to $1.70 per mile in March of 2014. Plaintiff contends
that an email exchange between Plaintiff’s and Defendant’s principals on March 28-29, 2014,
constituted a valid amendment to the Agreement’s terms, effective March 31, 2014. Plaintiff is
correct that the Agreement does not provide for the manner in which it may be modified, and
accordingly the e-mail exchange between the parties could operate as an amendment to the
Agreement. Bretl Decl. at Ex. 2. “Under New Jersey law, parties to an existing contract, by
mutual assent, may modify their contract, and modification can be proved by an explicit
agreement to modify, or . . . by the actions and conduct of the parties, so long as the intention to
modify is mutual and clear. A proposed modification by one party to a contract must be accepted
by the other to constitute mutual assent to modify . . . . In addition, an agreement to modify must
be based on new or additional consideration.” Elliott & Frantz, Inc. v. Ingersoll-Rand Co., 457
F.3d 312, 322 (3d Cir. 2006) (citations omitted). On the undisputed facts before the Court,
Plaintiff has demonstrated that a modification took place. On March 28, 2014, Tom D’Agostino,
Jr., on behalf of Defendant, sent an email to JP Bretl, representing Plaintiff, proposing new
contract terms, including an increase in the number of trucks provided by Plaintiff from 15 to 20
and an increase in the per mile price paid by Defendant from $1.40 to $1.70. Bretl Decl. at Ex. 3.
On March 29, 2014, Bretl replied indicating that he would have the new agreement terms
drafted, but stating that the additional trucks would be provided and higher price would be
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charged effective the following Monday (March 31). Id. Defendant continued to accept trucking
services from Plaintiff from March 31 until April 27, 2014, receiving weekly invoices over the
period. Bretl. Decl at ¶¶ 16-19. Accordingly, the record evidences a mutual intent to modify the
terms of the Agreement to increase the dedicated number of tractors and per mile price under the
Agreement, new valuable consideration was exchanged through the provision of additional
tractors by Plaintiff and the promise to pay higher prices by Defendant, and Defendant
manifested its assent to Plaintiff’s final March 29 proposal through its acceptance of Plaintiff’s
increased services. 6 Accordingly, the record reflects that Defendant properly owed Plaintiff
$65,405.10 for the increased mileage rate.
Third and finally, Defendant deducts the remaining $10,329.82 due to several incidences of
charging “deficit miles,” double billing, and overbilling. In the absence of any supporting
evidence in the record or opposition by Defendant, Plaintiff’s ledger and certification reflect that
Defendant properly owed Plaintiff $10,329.82.
2. Partially Paid Invoices.
Separate and apart from the unpaid invoices, Plaintiff also claims to be owed $234,166.78
for a series of invoices Plaintiff submitted between November 2012 and February 2014, for
which it received only partial payment from Defendant. Plaintiff’s spreadsheet ledger clearly
shows the dates service was invoiced and the partial payments received. Bretl Decl. at Ex. 1A. In
a May 19, 2014 e-mail, Defendant contested $63,933.81 of the “short pay” charges on the

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The Court observes that Defendant’s ledger shows that the $1.70 rate was improperly billed in
the period from March 24, 2014 to March 30, 2014 — before Plaintiff alleges the amendment to
have gone into effect. Nevertheless, as Plaintiff has certified that the new price was only charged
after Monday, March 31, 2014, Bretl Decl. at ¶ 15, and Defendant declines to oppose Plaintiff’s
motion, the Court cannot find a dispute of material fact preventing summary judgment.
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grounds that many were the result of overbilling or incorrect billing after equipment failures with
Plaintiff’s tractors. Id. at Ex. 4. Defendant did not object to the remaining $170,232.97 of “short
pays.” In the absence of any counter-allegations from Defendant, these short pays are admittedly
owed to Plaintiff. As was the case for the wholly unpaid invoices, for the remaining “short pays”
Defendant has failed to produce any evidence in the record to support its overbilling claims or
provide any other opposition to create an issue of material fact preventing summary judgment.
Accordingly, the record reflects that Defendant properly owed Plaintiff the remaining $63,933.81
in contested short pays as well.
The Court finds adequate support in the record for each of Plaintiff’s damages claims,
and thus, Plaintiff is entitled to the $1,368,398.01 in compensatory damages it seeks in this
motion. See, e.g., McKinley v. Skyline Corp., 900 F. Supp. 2d 408, 415–16 (D.N.J. 2012) (where
motion for summary judgment “unopposed,” moving party “properly supported motion for
summary judgment” and non-moving party “failed to identify specific facts and affirmative
evidence that contradict those offered by” by the moving party, summary judgment appropriate).
B. Attorney’s Fees and Costs
In addition to compensatory damages, Plaintiff also seeks an award of attorney’s fees and
costs as a sanction against Defendant for pursuing its answer and counterclaims in bad faith as a
delay tactic. Plaintiff contends that Defendant’s failure to provide a 30(b)(6) witness or expert
report in support of its claims, and abandonment of a negotiated settlement between the parties
after having sought a stay of the litigation in order to pursue the settlement warrant sanctions
under Rule 11. As an initial matter, Plaintiff’s motion is not properly raised as an addendum to
its motion for summary judgment. Under Rule 11 “[a] motion for sanctions must be made
separately from any other motion.” Fed. R. Civ. P. 11(c)(2).
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Even were Plaintiff’s motion properly before the Court, it would nevertheless fail on the
record presently before the Court; Defendant’s allegations with regard to at least the contested
portions of the amount due, although insufficient to survive summary judgment without
additional support, were not so “patently unmeritorious or frivolous” as to warrant sanctions.
LORI MOECK, In her capacity as parent & natural guarding of C.M. & A.M.; C.M. a minor;
A.M., a minor v. PLEASANT VALLEY SCHOOL DISTRICT; DOUGLAS C. ARNOLD,
Superintendent of Sch., Pleasant Valley Sch. District; ANTHONY A. FADULE, Assistant
Superintendent of Sch., Pleasant Valley Sch. District; JOHN J. GRESS, Principal, Pleasant
Valley Sch. District: MARK GETZ, Wrestling Coach, Pleasant Valley Sch. Dist. Pleasant Valley
Sch. Dist., Appellant, No. 16-2473, 2016 WL 7422258, at *3 (3d Cir. Dec. 23, 2016). Moreover,
the Court cannot determine on the record before it whether Defendant’s failure to timely provide
discovery, and the failure of earlier settlement negotiations were the result of a calculated
strategy of delay by Defendant. Plaintiff’s motion for Rule 11 sanctions is thus denied without
prejudice. If Plaintiff wishes to pursue such relief, it may file a separate and properly supported
motion 7 within 30 days of the date of this Order and Opinion.
C. Pre-Judgment Interest
The Third Circuit has long held “that federal courts in diversity cases should apply state
law with respect to prejudgment interest.” Jarvis v. Johnson, 668 F.2d 740, 746 (3d Cir. 1982).
Accordingly, “New Jersey’s prejudgment interest rule should be applied in a federal district court

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Although the Schmit Declaration provides the Court with some basis to evaluate Plaintiff’s
allegations concerning Defendant’s promises and subsequent failure to provide 30(b)(6) and
expert witnesses, Plaintiff has not directed the Court to any support in the record concerning
Defendant’s alleged bad-faith participation in settlement negotiations, which from a review of
the docket, if substantiated, would constitute a significant portion of the delay and expense in
this case.
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sitting in New Jersey.” Id. “[U]nder New Jersey law, a court may award prejudgment interest in
its discretion in accordance with equitable principles.”Fed. Home Loan Mortg. Corp. v.
Scottsdale Ins. Co., 316 F.3d 431, 450 (3d Cir. 2003) (quoting Liberty Lincoln–Mercury v. Ford
Motor Co., 134 F.3d 557 (3d Cir. 1998)). “[T]he purpose of prejudgment interest is to
‘compensate the plaintiff for the loss of income that would have been earned on the judgment
had it been paid earlier.’” Thabault v. Chait, 541 F.3d 512, 533 (3d Cir. 2008) (quoting Ruff v.
Weintraub, 105 N.J. 233, 519 A.2d 1384, 1390 (1987)). Here, Plaintiff has had to wait years to
recover payments owed to it under a contract, the vast majority of which were admitted to be
owed by Defendant. Bearing this in mind with the delays in the case brought about by
Defendant’s failure to timely provide discovery and Defendant’s late withdrawal from settlement
negotiations — whether or not part of an intentional strategy by Defendant — prejudgment
interest is clearly warranted in this case. In the Order to follow, Plaintiff shall be directed to
submit an affidavit setting forth the appropriate calculation of prejudgment interest in
conformance with this Court’s award of compensatory damages.
CONCLUSION
For the foregoing reasons, the Court grants Plaintiff’s motion on its breach of contract
claim and will enter judgment in the amount of $1,368,398.01 plus prejudgment interest in the
Order to follow; Defendant’s counterclaims are dismissed; and Plaintiff’s request for Rule 11(b)
sanctions is denied without prejudice.
Dated: _____1/3/2017____

/s/ Freda L. Wolfson
.
The Honorable Freda L. Wolfson
United States District Judge

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