United States District Court, D. Hawai’i.

THE PASHA GROUP; The Pasha Group AG; and Pasha Trucking LLC, Plaintiffs,

v.

HARBOUR FORWARDING COMPANY, Inc.; and Doe Defendants 1–10, Defendants.

 

Civil No. 11–00358 DAE–RLP.

Feb. 16, 2012.

 

Christopher A. Dias, Schutter Dias Smith & Wong, Honolulu, HI, for Plaintiffs.

 

FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT

 

Within fourteen (14) days after a party is served with a copy of the Findings and Recommendation, that party may, pursuant to 28 U .S.C. § 636(b)(1)(B), file written objections in the United States District Court. A party must file any objections within the fourteen-day period allowed if that party wants to have appellate review of the Findings and Recommendation. If no objections are filed, no appellate review will be allowed.

 

RICHARD L. PUGLISI, United States Magistrate Judge.

Before the Court is Plaintiffs The Pasha Group, The Pasha Group AG, and Pasha Trucking LLC’s (“Plaintiffs”) Motion for Default Judgment, filed on November 30, 2011 (“Motion”). See ECF No. 14. Plaintiffs request that default judgment enter against Defendant Harbour Forwarding Company, Inc. (“Defendant HFCI”) in the amount of $80,169.69 in general damages, plus $16,033.94 in pre-judgment interest, $1,430.00 in attorneys’ fees, and $476.06 in costs.

 

On December 30, 2011, the Court found this matter suitable for disposition without a hearing pursuant to LR 7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii. See ECF No. 15. Defendant HFCI’s president and registered agent, Curtis McArthur, was served with a copy of the Motion, but, as of the present date, Defendant HFCI has not filed an opposition or other response to the Motion, which, if any, should have been filed by December 14, 2011. See LR 7.4 (“An opposition to a non-hearing motion shall be served and filed not more than fourteen (14) days after service of the motion.”). Based on the following, and after careful consideration of the Motion, the supporting memorandum, declarations, and exhibits attached thereto, and the record established in this action, the Court HEREBY FINDS AND RECOMMENDS that the Motion be GRANTED IN PART AND DENIED IN PART as follows.

 

BACKGROUND

On June 9, 2011, Plaintiffs filed their Complaint by Carrier to Recover Freight Charges (“Complaint”) against Defendant HFCI. See ECF No. 1. Plaintiffs allege that, at all relevant times, Defendant HFCI was a Hawaii corporation doing business in this judicial district. See id. at ¶ 4. Plaintiffs allege that they provided freight and related services for Defendant HFCI’s account from September 2009 through January 2011. See id. at ¶ 5. Despite demand, Defendant HFCI allegedly failed and/or refused to pay Plaintiffs for the transportation and services of the aforementioned cargo. See id. As a result, Defendant HFCI allegedly owes Plaintiffs $81,169.68. See id. at ¶ 6.

 

On August 12, 2011, Curtis McArthur filed a Waiver of the Service of Summons on behalf of Defendant HFCI, which stated that he, or the entity he represents, must file or serve an answer or a motion under Rule 12 within 60 days from July 18, 2011. See ECF No. 6. On September 1, 2011, Plaintiffs filed a Report of Parties’ Planning Meeting, which stated that a Rule 26 conference was conducted between Plaintiffs’ attorney and Curtis McArthur, “the principal of Defendant [HFCI].” See ECF No. 7, at 1.

 

On September 21, 2011, a Rule 16 Scheduling Conference was held by the Court with Plaintiffs’ counsel, but no one appeared on behalf of Defendant HFCI. See ECF No. 10. After Defendant HFCI failed to respond to Plaintiffs’ Complaint, on October 13, 2011, Plaintiffs requested, and received, entry of default against Defendant HFCI. See ECF No. 13. On November 30, 2011, Plaintiffs filed the instant Motion for default judgment against Defendant HFCI. See ECF No. 14.

 

On January 3, 2012, Edward D. Magauran, Esq., filed a Notice of Bankruptcy, which stated:

 

Defendant Curtis Durant McArthur filed a Chapter 13 Bankruptcy proceeding on December 30, 2011 in Bankruptcy Case No. 11–03319. He is a party in Civil No. 11–00358. This case is stayed pursuant to 11 U.S.C. Section 362.

 

ECF No. 17 (bold in original). On January 12, 2012, the Court instructed Plaintiffs to file a written status report regarding the status of the case, including Plaintiffs’ position with respect to the effect, if any, of the bankruptcy on their pending Motion for default judgment. See ECF No. 18.

 

On January 18, 2012, Plaintiffs filed the requested status report. See ECF No. 19. Plaintiffs’ position was that the automatic stay provided under 11 U.S.C. § 362(a) does not apply to this case and that the Court should move forward with a ruling on Plaintiffs’ Motion for default judgment. See id.

 

On January 20, 2012, the Court issued an Order Regarding Supplemental Briefing in Support of Notice of Bankruptcy, which instructed Curtis McArthur to file a supplemental memorandum in support of his Notice of Bankruptcy. See ECF No. 20. On February 3, 2012, Mr. Magauran, on behalf of Curtis McArthur, filed a Statement, which provided, “The debtor does not oppose the court continuing the action against HFCI, however any judgment against HFCI may not be satisfied from property of the Debtor’s estate and the Plaintiff may not seek to make Debtor as a Defendant in the case .” ECF No. 24, at 2. Mr. Magauran clarified that, “While the Debtor is not a named party to the action, the debtor, as the principal of the HFCI, could possibly be named as a Doe Defendant and notice was given to advise the parties and the Court that no action may be taken against the debtor or his personal assets.” Id. at 2–3.

 

LEGAL STANDARD

Default may be entered by the clerk if the defendant has “failed to plead or otherwise defend” within the permitted time. Fed.R.Civ.P. 55(a). Under FRCP 55(b)(1), the clerk of the Court may enter default judgment for the plaintiff if the defendant has defaulted by failing to appear and plaintiff’s claim is for a “sum certain or for a sum which can by computation be made certain[.]” Fed.R.Civ.P. 55(b)(1). In all other cases, the plaintiff must apply to the court for default judgment. Fed.R.Civ.P. 55(b)(2).

 

The grant or denial of a motion for the entry of default judgment is within the discretion of the court. Haw. Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 511–12 (9th Cir.1986). However, default judgments are ordinarily disfavored, and cases should be decided upon their merits wherever reasonably possible. Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir.1986). Thus, entry of default does not entitle the non-defaulting party to a default judgment as a matter of right. Valley Oak Credit Union v. Villegas, 132 B.R. 742, 746 (9th Cir.1991).

 

The Ninth Circuit has indicated that a court should consider the following factors in exercising its discretion as to the entry of a default judgment:

 

(1) the possibility of prejudice to the plaintiff;

 

(2) the merits of the plaintiff’s substantive claim;

 

(3) the sufficiency of the complaint;

 

(4) the sum of money at stake in the action;

 

(5) the possibility of a dispute concerning material facts;

 

(6) whether the default was due to excusable neglect; and

 

(7) the strong policy underlying the FRCP favoring decisions on the merits.

 

Eitel, 782 F.2d at 1471–72.

 

Upon default, the general rule of law is that “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir.1987) (quoting Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir.1977)). Under this standard, the well-pled allegations in the complaint regarding liability are deemed true, but the plaintiff must establish the relief to which she is entitled. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir.2002). Furthermore, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir.1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.1978)).

 

ANALYSIS

A. The Automatic Bankruptcy Stay Does Not Apply

“The automatic stay of 11 U.S.C. § 362(a) protects only the debtor, property of the debtor or property of the estate.” In re Advanced Ribbons & Office Prods., Inc., 125 B.R. 259, 263 (B.A.P. 9th Cir.1991); see also 11 U.S.C. § 362(a).

 

It does not protect against non-debtor parties or their property. Thus, section 362(a) does not stay actions against guarantors, sureties, corporate affiliates, or other non-debtor parties liable on the debts of the debtor. Similarly, the automatic stay does not protect the property of parties such as officers of the debtor, even if the property in question is stock in the debtor corporation.

 

Advanced Ribbons, 125 B.R. at 263 (citations omitted).

 

In the instant case, the sole named defendant is Defendant HFCI. Based on the Court’s review of the record in Bankruptcy Case No. 11–003319, only Curtis McArthur and his wife, Deborah Poulson McArthur, are listed as debtors; Defendant HFCI is not a party to the bankruptcy proceeding. Moreover, Curtis McArthur, Defendant HFCI’s president and registered agent, states that he does not oppose the Court going forward with the litigation of this case against Defendant HFCI. Therefore, the Court finds that the automatic stay of 11 U.S.C. § 362(a) does not apply to Defendant HFCI, and it is appropriate to proceed with a ruling upon the instant Motion.

 

In their Status Report, Plaintiffs state that, “[a]ccording to the Business Registration Division of the State of Hawaii Department of Commerce and Consumer Affairs, Defendant HFCI is a for profit Alaska corporation whose sole shareholders are Curtis and Deborah McArthur, who also together occupy all officer and director positions.” ECF No. 19, at 2–3. The Court has confirmed that Defendnat HFCI is registered to do business in Hawaii and that Curtis McArthur is its president and registered agent.

 

B. Jurisdiction

As a preliminary matter, this Court has an affirmative obligation to determine whether or not it has jurisdiction over both the subject matter of this action as well as the defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir.1999) ( “To avoid entering a default judgment that can later be successfully attacked as void, a court should determine whether it has the power, i.e., the jurisdiction, to enter the judgment in the first place.”).

 

1. Subject Matter Jurisdiction

This is a matter of admiralty and maritime jurisdiction under 28 U.S.C. § 1333. This Court also has federal question jurisdiction, 28 U.S.C. § 1331, and jurisdiction under the laws of the United State regulating commerce, 28 U.S.C. § 1337 and 46 U.S.C. § 801 et seq., 46 U.S.C. § 1701 et seq. and/or 46 U.S.C. § 10101 et seq.

 

2. Personal Jurisdiction

Personal jurisdiction in this district is proper provided it is consistent with Hawaii’s long-arm statute and it comports with due process of law.   Boschetto v. Hansing, 539 F.3d 1011, 1021–22 (9th Cir.2008). Because Hawaii’s long-arm statute, Haw.Rev.Stat. § 634–35, reaches to the full extent permitted by the United States Constitution, the Court need only determine whether due process permits the exercise of personal jurisdiction.   Television Events & Mktg., Inc. v. Amcon Distrib. Co., 416 F.Supp.2d 948, 958 (D.Haw.2006) (citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800–01 (9th Cir.2004)).

 

For due process to be satisfied, a defendant must have “minimum contacts” with the forum state such that the assertion of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir.2006) (citing Int’l Shoe Co. v. Wash., 326 U .S. 310, 315 (1945)). To meet this requirement, the Court must have either general jurisdiction or specific jurisdiction over the defendant.   Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1050 (9th Cir.1997).

 

a. General Jurisdiction

General jurisdiction exists when the defendant is either (1) domiciled in the forum state or (2) his activities there are “substantial” or “continuous and systematic,” even if the cause of action is unrelated to those activities. Id.; Panavision Int’l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 414–16 (1984)).

 

The standard for establishing general jurisdiction is “fairly high,” and requires that the defendant’s contacts be of the sort that approximate physical presence. Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir.2000); Menken v. Emm, 503 F.3d 1050, 1056–57 (9th Cir.2007) ( “Unless a defendant’s contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be ‘present’ for all purposes, a forum may only exercise ‘specific’ jurisdiction”). To determine whether general jurisdiction exists, the Court considers whether the defendant makes sales, solicits or engages in business in the state, serves the state’s markets, designates an agent for service of process, holds a license, or is incorporated there. Bancroft, 223 F.3d at 1086.

 

The Court finds that it has general jurisdiction over Defendant HFCI. Here, Defendant HFCI is registered to do business in Hawaii; has a Hawaii mailing address; lists Curtis McArthur, a Hawaii resident, as its registered agent; and identifies Curtis McArthur and his wife as its only officers. Despite the fairly high standard for general jurisdiction, the Court finds that these contacts with Hawaii are so substantial, continuous, and systematic that Defendant HFCI can be deemed present for all purposes. For these reasons, the Court concludes that it is appropriate to exercise general jurisdiction over Defendant HFCI.

 

b. Specific Jurisdiction

The Ninth Circuit applies a three-part test to determine whether specific jurisdiction exists: (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum, (2) the claim arises out of or results from the defendant’s forum related activities, and (3) the exercise of jurisdiction is reasonable. Boschetto, 539 F.3d at 1021. If any of the three requirements is not met, jurisdiction in the forum would deprive the defendant of due process of law. Pebble Beach Co., 453 F.3d at 1155 (quoting Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir.1995)). Even if the Court had not concluded that it has general jurisdiction over Defendant HFCI, the Court finds that it would be appropriate to exercise specific jurisdiction.

 

C. Eitel Factors

Following a determination that jurisdiction is proper, the Court must consider whether default judgment is appropriate under the Eitel factors outlined above. The Court will address each factor in turn.

 

1. Factor One: The Possibility of Prejudice to Plaintiffs

The first factor set forth by the Ninth Circuit in Eitel considers whether the plaintiff would suffer prejudice if default judgment is not entered. See PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D.Cal.2002). Here, absent entry of default judgment, Plaintiffs would be without another recourse for recovery. Accordingly, the first Eitel factor favors the entry of default judgment.

 

2. Factors Two and Three: Merits of Plaintiffs’ Substantive Claims and Sufficiency of the Complaint

The Court considers the merits of Plaintiffs’ substantive claims and the sufficiency of the Complaint together because of the relatedness of the two inquiries. For these factors, the Court must determine whether the allegations in the Complaint are sufficient to state a claim that supports the relief sought. Danning, 572 F.2d at 1388.

 

Here, Plaintiffs allege that they provided freight and related services for Defendant HFCI’s account from September 2009 through January 2011. Copies of the shipping documents were attached to the Complaint as Exhibits “1”—“8,” and the Motion attached a copy of the request for freight services executed by Curtis McArthur on behalf of Defendant HFCI as well as invoices for services. The Complaint further alleges that Defendant HFCI has failed and/or refused to pay Plaintiffs for the transportation and services of the aforementioned cargo.

 

As the Supreme Court has explained,

 

The bill of lading is the basic transportation contract between the shipper-consignor and the carrier; its terms and conditions bind the shipper and all connecting carriers. Each term has in effect the force of a statute, which all affected must take notice. Unless the bill provides to the contrary, the consignor remains primarily liable for the freight charges.

 

S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 342–43 (1982) (quotations and citations omitted). See also Oak Harbor Freight Lines, Inc. v. Sears Roebuck & Co., 513 F.3d 949, 954 (9th Cir.2008) (“The bill of lading provides that the owner or consignee shall pay the freight and other lawful charges upon the transported property and that the consignor remains liable to the carrier for all lawful charges.”) (citation omitted).

 

Taking the factual allegations of the Complaint as true, the Court finds that Defendant HFCI, as a shipper, is responsible to Plaintiffs for the freight and related services charges it received. The Court further finds that Defendant HFCI has not paid for this transportation and services. Therefore, the Court finds that the second and third Eitel factors favor the entry of default judgment as to Plaintiffs’ Complaint.

 

3. Factor Four: Sum of Money at Stake

Under the fourth Eitel factor, “the court must consider the amount of money at stake in relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F.Supp.2d at 1177. In this case, Plaintiffs seek a significant amount of general damages, i.e., $80,169.68. However, Plaintiffs’ damages request is tailored to Defendant HFCI’s specific wrongful conduct. Under these circumstances, the Court concludes that this factor favors the entry fo default judgment.

 

4. Factor Five: Possibility of Dispute Concerning Material Facts

As to the fifth Eitel factor, as previously stated, upon entry of default, the well-pled factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Sys., Inc., 826 F.2d at 917–18. Defendant HFCI has been given a fair amount of time to answer Plaintiffs’ Complaint and deny that it is owes Plaintiffs for the carrier charges; Defendant HFCI, however, has not done so. Because no dispute has been raised regarding Plaintiffs’ material factual allegations, the Court finds that this factor favors the entry of default judgment.

 

Plaintiffs assert that Defendant HFCI has never disputed that it owes Plaintiffs for the services provided. See Pls.’ Mem. Supp. Mot. 3, 4.

 

5. Factor Six: Whether Default was Due to Excusable Neglect

Upon review of the record, the Court finds that Defendant HFCI’s default was not the result of excusable neglect. Curtis McArthur, Defendant HFCI’s president and registered agent, filed a Waiver of the Service of Summons on behalf of Defendant HFCI. Plaintiffs filed a Report of Parties’ Planning Meeting, which stated that a Rule 26 conference was conducted between Plaintiffs’ attorney and Curtis McArthur. In addition, Plaintiffs served Defendant HFCI, through Curtis McArthur, with notice of the instant Motion.

 

Despite ample notice of this lawsuit and Plaintiffs’ intention to seek a default judgment, Defendant HFCI has not appeared in this matter to date. Thus, the record suggests that Defendant HFCI’s default was not the result of any excusable neglect, but rather due to Defendant HFCI’s conscious and willful decision not to defend this action. Consequently, this factor favors the entry of default judgment.

 

6. Factor Seven: Policy Favoring Decisions on the Merits

The Court next turns to the seventh and final Eitel factor. Defendant HFCI’s failure to answer Plaintiffs’ Complaint makes a decision on the merits impractical, if not impossible. Under FRCP 55, “termination of a case before hearing the merits is allowed whenever a defendant fails to defend an action.”   PepsiCo., Inc., 238 F.Supp.2d at 1177; see also Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 501 (C.D.Cal.2003) (“the mere existence of Fed.R.Civ.P. 55(b) indicates that the seventh Eitel factor is not alone dispositive”). In the present case, Defendant HFCI has likewise failed to defend this action and has consequently rendered adjudication on the merits before this Court impracticable, if not impossible. Therefore, the seventh Eitel factor does not preclude this Court from entering default judgment against Defendant HFCI.

 

7. Totality of Eitel Factors

Upon consideration of the foregoing Eitel factors, the Court finds that, as a whole, these factors weigh in favor of entering default judgment in Plaintiffs’ favor and against Defendant HFCI as to Plaintiffs’ Complaint.

 

D. Damages and Relief Sought

 

1. General Damages

 

Plaintiffs seek $80,169.68 in general damages. As evidentiary support, Plaintiffs submitted the Declaration of Amy Sherburne, a Senior Vice President and General Counsel of the Pasha Group. See Sherburne Decl. ¶ 1. Plaintiffs also attached as Exhibit “1” a copy of a request for freight services executed by Curtis McArthur on behalf of Defendant HFCI. Ms. Sherburne states that Plaintiffs provided the services requested by Defendant HFCI in Exhibit “1.” See id. at ¶ 3. Finally, Plaintiffs attached as Exhibits “2” through “9” copies of invoices for services provided by Plaintiffs to Defendant HFCI. See id. at ¶ 5. Ms. Sherburne states that, as of November 28, 2011, there remains $80,169.68 due and owing on the attached invoices. See id. at ¶ 6. Upon review of this evidence, the Court finds that Plaintiffs have established general damages in the amount of $80,169.68.

 

2. Prejudgment Interest

Plaintiffs also request an award of prejudgment interest on all unpaid ocean freight and charges. “It is well-established that compensatory damages in maritime cases normally include pre-judgment interest.” W. Pac. Fisheries, Inc. v. SS President Grant, 730 F.2d 1280, 1288 (9th Cir.1984). Although the award of prejudgment interest is within the court’s discretion, this discretion must be exercised with a view to the fact that prejudgment interest is an element of compensation, not a penalty. Id.; Columbia Brick Works, Inc. v. Royal Ins. Co. of Am., 768 F.2d 1066, 1068 (9th Cir .1985) (“In admiralty law, the district court has discretion to award prejudgment interest to accomplish the just restitution of injured parties.”). The court also has broad discretion to determine when prejudgment interest commences and what rate of interest to apply. Id.

 

In cases tried under admiralty principles only, principles of federal law govern a plaintiff’s entitlement to prejudgment interest. Id. at 1071. In determining the appropriate prejudgment interest award, the Ninth Circuit has adopted the standards set for post-judgment interest set forth in 28 U.S.C. § 1961(a), unless the trial judge finds, on substantial evidence, that the equities of a particular case require a different rate. See Pac. Fisheries, 730 F.2d at 1289 (“We conclude that the measure of interest rates prescribed for post-judgment interest in 28 U.S.C. § 1961(a) is also appropriate for fixing the rate for pre-judgment interest …, unless the trial judge finds, on substantial evidence that the equities of a particular case require a different rate.”); Columbia Brick Works, 768 F.2d at 1071; Blanton v. Anzalone, 760 F.2d 989, 993 (9th Cir.1985).

 

28 U.S.C. § 1961(a) provides in relevant part, “Interest shall be allowed on any money judgment in a civil case recovered in a district court…. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1–year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding….” Upon the Court’s independent research, from September 2009 through January 2011, this interest rate has fluctuated weekly between 0.10% to 0.47%.

 

Here, “as a matter of convenience to the parties and the Court, Plaintiffs seek prejudgment interest at the statutory rate of 10% (uncompounded) pursuant to Hawaii Revised Statutes § 478–2.” Pls.’ Mem. Supp. Mot. 6. Since Plaintiffs were not paid by Defendant HCFI for services received beginning in September 2009, Plaintiffs seek prejudgment interest of 10% for two years totaling $16,033.94. The Court finds that Plaintiffs have failed to present substantial evidence as to why the equities require that the Hawaii interest rate should be prevail over the rate established in 28 U.S.C. § 1961(a). The weekly average 1–year constant maturity Treasury yield for the week prior to September 1, 2009 (August 28, 2009) was 0.45%. Applying this rate for a two-year period, the Court concludes that Plaintiffs should be awarded $721.52 in prejudgment interest.

 

$80,169.68 x 0.45% =360.76 x 2 years = 721.52.

 

3. Attorneys’ Fees and Costs

Finally, Plaintiffs ask to be awarded $1,430.00 in attorneys’ fees and $467.06 in costs as the prevailing party. However, absent statutory authorization, the prevailing party in an admiralty case is generally not entitled to an award of attorneys’ fees. B.P. N. Am. Trading, Inc. v. Vessel Panamax Nova, 784 F.2d 975, 977 (9th Cir.1986); APL Co. Pte. Ltd. v. UK Aerosols Ltd., 582 F.3d 947, 956 (9th Cir.2009). Because Plaintiffs fail to provide statutory authorization, the Court finds that an award of attorneys’ fees is not warranted.

 

Plaintiffs cite Pennsylvania and New York case law in which the bills of lading specifically provided for an award of attorneys’ fees to the prevailing party. Insofar as Plaintiffs fail to identify a specific provision in their bills of lading with Defendant HFCI providing for an award of attorneys’ fees, the Court finds these cases inapposite and immaterial.

 

Costs, on the other hand, should be allowed to the prevailing party unless a federal statute says otherwise. Fed.R.Civ.P. 54(d)(1). Plaintiffs claim to have incurred costs of $24.34 in postage, $86.40 in photocopying, $6.32 in long distance charges, and a $350.00 filing fee. See Diaz Decl. ¶ 4. Upon review, the Court finds that these costs are taxable, and Plaintiffs are entitled to $467.06 in costs.

 

CONCLUSION

In accordance with the foregoing, the Court FINDS and RECOMMENDS that Plaintiffs’ Motion for Default Judgment, filed on November 30, 2011, be GRANTED IN PART AND DENIED IN PART as follows:

 

(1) Default judgment shall enter against Defendant Harbour Forwarding Company, Inc. and in favor of Plaintiffs as to Plaintiffs’ Complaint, filed on June 9, 2011;

 

(2) Plaintiffs shall be awarded $80,169.68 in general damages;

 

(3) Plaintiffs shall be awarded $1721.52 in prejudgment interest;

 

(4) Plaintiffs shall not be awarded attorneys’ fees; and

 

(5) Plaintiffs shall be awarded $476.06 in costs.

 

IT IS SO FOUND AND RECOMMENDED.

United States District Court,

N.D. West Virginia.

PHOENIX DRILLING, INC., Plaintiff and Counterclaim Defendant,

and

Bradley Liggett and Dennis Chidester, Intervenor Plaintiffs,

v.

EAST RESOURCES, INC., East Resources Management, LLC., and Swepi, LP., Defendants and Counterclaimants,

v.

Braden Drilling, LLC., Counterclaim Defendant.

 

Civil Action No. 1:11CV08.

March 13, 2012.

 

ORDER/OPINION

JOHN S. KAULL, United States Magistrate Judge.

On the 12th day of January, 2012, Plaintiffs filed a Motion to Compel [Docket Entry 48]. On January 7, 2012, Plaintiffs’ Motion to Compel was referred to the undersigned [Docket Entry 50]. On February 2, 2012, Defendants East Resources, Inc., East Resources Management, LLC, and Swepi, LP (collectively “Defendants”) filed their Response to the Motion [Docket Entry 56]. On February 8, 2012, Plaintiffs filed a Reply [Docket Entry 62]. The Court finds the issues involved in the motion are not complex and therefore do not require a hearing.

 

The Amended Complaint in this case was filed against the three Defendants named in the motion in State Court on December 21, 2010 [D.E. 1]. On January 26, 2011, Defendants removed the action to this Court [D.E. 1]. The Answer to the Amended Complaint was filed on February 28, 2011 [D.E. 10], and an Amended Answer on March 11, 2010 [D.E. 13]. These parties filed their joint Rule 26(f) Report on March 10, 2011. A Scheduling Order was entered on October 3, 2011 [D.E. 38].

 

Other activity took place in the interim, including other parties being added as intervenors and counterclaimants. The Court notes, however, that the parties involved in this motion were named in the original complaint.

 

Plaintiffs served “Plaintiff’s First Set of Combined Discovery Requests to Defendants” on October 20, 2011 [D.E. 39]. On November 16, 2011, Defendants requested a two week extension, and the parties agreed to a mutual two week extension [Exhibit 2]. On December 5, 2011, Defendants requested another ten days’ extension, and the parties again agreed to a mutual extension [Exhibit 3].

 

On December 15, 2011, Defendants served “Defendants [sic] Objections to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents” [Exhibit 4]. A review of the document indicates Defendants inexplicably did not respond in any manner to Interrogatories 1, 2, 3, 4, 5, 8, 10, 11, 14, 15, or 17, or Requests 4, 8, 20, or 25. As to the Interrogatories and Requests to which Defendants did respond on December 15, the response to every Interrogatory and Request was solely an objection, with the exception of Requests 10 and 11, regarding experts, which Defendants stated would be supplied in accordance with the Court’s scheduling order. The objection to nearly every request was that it was “overly broad, unduly burdensome, and not reasonably calculated to lead to discovery of admissible evidence.” In brief, absolutely no information was provided in response to the discovery requests, despite the extensions of time.

 

On December 19, 2011, counsel for Plaintiffs wrote to counsel for Defendants, first noting the numerous requests to which Defendants did not respond at all, and second noting the requests addressed resulted solely in objections, with no information provided whatsoever [Exhibit 5]. On December 21, the parties conferred by telephone. According to a letter from Plaintiffs’ counsel to Defendants’ counsel, which Defendants do not dispute, Defendants advised during the phone conference: “East Resources, Inc., is having some trouble extracting information and documentation from its computer system and you believe that it may be a week or two before you will be able to extract it or determine that it is non-extractable.” In the letter, counsel for Plaintiffs agreed to wait for further responses until December 28, 2011 [Exhibit 6].

 

According to a letter written by Plaintiffs’ counsel to Defendants’ counsel on December 28, 2011, counsel did confer by telephone that date [Exhibit 7]. Counsel for Plaintiffs agreed to “forget” Requests 16, 17, 18, and 19. Defendants appeared to be “willing to provide [ ] some of the documentation and information at issue.” They also appeared to resolve the issues regarding Interrogatory 7 and Requests 21 and 22.

 

Plaintiffs’ counsel agreed to narrow the scope of Interrogatory 6 and Request 23 to “lawsuits involving allegations of fraud, breach of contract, tortious interference with business relations, and/or equitable estoppel/detrimental reliance,” and also agree to limit the requests to lawsuits filed between January 1, 2005, and the date of the letter. Those requests remain disputed, however, as does Interrogatory 9. Significantly, Defendants at that point had still not responded in any way to 11 interrogatories and 4 requests for production.

 

On January 4, 2012, counsel for Defendants emailed counsel for Plaintiffs, advising:

 

I have quite a bit more information to discuss with you and some more items that we can probably agree upon following up on our conversation last week. I am out today with some kind of head and chest flu, but I hope to be up and running enough to be back at work tomorrow. I will give you a call tomorrow to discuss if that works for you.

 

Counsel for Plaintiffs replied: “That works. I hope you feel better.” [Exhibit 8].

 

On January 11, 2012, Plaintiffs’ counsel emailed Defendants’ counsel advising that, despite counsel’s assurances that responses would be filed on January 9, 2012, he had still not received any response whatsoever to the 11 interrogatories and 4 requests for production to which Defendants did not object [Exhibit 9].

 

The Motion to Compel was filed the next day, January 12, 2012. On January 26, 2012, Defendants requested and were granted an extension of time to respond to the motion to compel “as the parties continue to discuss the substance of that motion and the Defendants [sic] responses thereto.”

 

Defendants filed their Responses to the discovery requests on January 27, 2012, more than three months after the requests were first served. They filed their Response to the Motion to Compel on February 2, 2012.

 

Still in dispute are Interrogatories 6 and 9 and Request for Production 23.

 

Interrogatory No. 6 and the response thereto are as follows:

 

INTERROGATORY NO. 6: Please list each and every lawsuit that has been filed against East Resources, Inc. In the past ten (10) years, including:

 

(a) the names of all parties;

 

(b) the jurisdiction;

 

(c) the venue;

 

(d) the civil action number;

 

(e) the name(s) of the attorney(s) representing the adverse party or parties;

 

(f) the telephone number(s), if known, of each and every attorney who represented the adverse party or parties in the lawsuit against East Resources, Inc.,;

 

(g) the general allegations and specific causes of actions set forth in the complaint;

 

(h) the ultimate resolution of the lawsuit (settlement, dismissal, trial, etc.);

 

(I) the amount of money paid by East Resources, Inc. or on behalf of East Resource, Inc. to satisfy the judgment or settlement obligations.

 

ANSWER: The Defendants object to the information sought relative to all lawsuits against East Resources for the past ten years as being irrelevant, overly broad and not reasonably calculated to least to the discovery of admissible evidence.

 

Request for Production 23 and the Response thereto are as follows:

 

REQUEST FOR PRODUCTION NO. 23: Please provide copies of each and every complaint that has ever been filed against East Resources, Inc. which includes allegations of fraud, breach of contract, tortious interference with business relations, and/or equitable estoppel, detrimental reliance.

 

RESPONSE: The information sought by request number 23, requesting copies of every complaint that has ever been filed against East Resources alleging fraud, breach of contract, tortious interference with business relations, and/or equitable estoppel/detrimental act, is overly broad, unduly burdensome and not reasonably calculated to lead to discovery of admissible evidence.

 

The Court notes that Plaintiffs subsequently narrowed the scope of both the Interrogatory and the Request for Production to include information regarding lawsuits filed between January 1, 2005, to the present, and involving only allegations of fraud, breach of contract, tortious interference with business relations, and/or equitable estoppel/detrimental reliance.

 

Interrogatory 9 and the response thereto are as follows:

 

INTERROGATORY NO. 9: Please state the compensation Defendant East Resources, Inc. paid to its executives (including the CEO, COO, CFO, all other executive level employees and members of the company’s Board of Directors) for the years 2000 through 2010.

 

ANSWER: The Defendants object to the information sought by interrogatory number 9 and that information paid to all executives for an eleven year time period of East Resources is neither relevant nor reasonably calculated to lead to discovery of admissible evidence.

 

First, general objections to discovery are, at the very least, disfavored. See, i.e., PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291 (N.D.W.Va.2004); Momah v. Albert Einstein Medical Center, 164 F.R.D. 412 (E.D.Pa.1996)(holding that “mere recitation of the familiar litany that an interrogatory or a document production request is ‘overly broad, burdensome, oppressive and irrelevant’ will not suffice”) (quoting Josephs v. Harris Corp., 677 F.2d 985 (3d Cir.1982)). Defendant’s subsequent response to the motion to compel only serves to underscore the inadequacy of the actual original discovery responses. As to Interrogatory 6 and Request 23, Defendant argues, in pertinent part:

 

This is a very specific case with very specific facts. Past litigation involving ERI, including those outside of the state of West Virginia, has absolutely no bearing on this action. While Plaintiff’s counsel agreed that Interrogatory No. 6 needed to be narrowed to reflect Request No. 23 and should be limited to lawsuits filed between January 1, 2005 and today … the narrowing of prior litigation information to “fraud, breach of contract, tortious interference with business relations, and/or equitable estoppel/detrimental reliance” over a seven year period still results in an unwarranted fishing expedition for irrelevant information in hopes of invoking punitive damages. Due process does not allow such a tactic.

 

As to Interrogatory 9, Defendant argues:

Likewise, Interrogatory No. 9, which asks for the executive compensation of ERI executives from 2000 through 2010, is not reasonably calculated to lead to admissible evidence. Plaintiff explains that it is relevant as to punitive damages and the fact that it believes an ERI employee stated that ERI did not have the cash to consummate an agreement with Phoenix. These two distinct uses for this information are both unwarranted. First, net worth, not executive compensation, is what is relevant for punitive damages in West Virginia … Second, if the Plaintiff wanted to know if cash was available during the time frame it alleges ERI agreed to purchase an interest in Phoenix, it could have simply asked that question in a discovery request. Instead, it is trying to pry into executive compensation as opposed to asking a direct question, which would have yielded a response that would make an inquiry into executive compensation unnecessary. Simply put, executive pay is not a relevant consideration for punitive damages. While net worth is relevant, that information has been fully provided.

 

Second, the Court does find significant the undisputed fact that the responses, based solely on the requests being “overly broad, unduly burdensome and not reasonably calculated to lead to discovery of admissible evidence,” were filed nearly two months after service of the requests, and after two requests for extensions of time were granted by Plaintiffs. In fact, the response to every single discovery request was an objection, while 11 interrogatories and 4 requests for production were not addressed in any way whatsoever. The Court does not find that the objections to these requests, as argued in the response to the motion to compel, required “additional time and resources to locate … including the examination of multiple servers and individual laptops that were not centrally located given the sale of the company.”

 

For this reason alone, the Court finds Plaintiff’ motion to compel should be granted. The Court shall, however, discuss each of the items separately. F.R.C.P. 26(b)(1) provides:

 

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense…. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

 

Defendants do not argue that the information sought in any of the requests is privileged or confidential.

 

The “discovery rules are to be accorded a broad and liberal treatment.”   Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed.451 (1947). However, the discovery sought must be relevant F.R .C.P. 26(b)(1); see also Herbert v. Lando, 441 U.S. 153, 99 S.Ct 1635, 60 L.Ed.2d 115 (1979). In striking the appropriate balance, “[d]istrict courts enjoy nearly unfettered discretion to control the timing and scope of discovery and impose sanctions for failures to comply with its discovery orders.” Hinkle v. City of Clarksburg, 81 F.3d 416 (4th Cir.1996). “Discovery requests may be deemed relevant if there is any possibility that the information may be relevant to the general subject matter of the action.” Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121 (M.D.N.C .1989). Federal Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

 

The issue is therefore whether the information is relevant to any party’s claim or defense. Plaintiffs’ complaint includes claims of fraud and tortious interference with business relations. Plaintiffs claim that Defendants made an offer of $8,750,000.00 for a 35% interest in Plaintiff’s business in order to induce Plaintiff to reject an offer of $20,000,000.00 plus incentives for the sale of the business to another entity. Plaintiffs further claim that at the time Defendants made the offer, they knew, or should have known they did not have the cash flow to pay the $8,750,000.00.

 

Defendants deny that they asked Plaintiffs to reject the other entity’s proposed offer, and further deny that, as an incentive, they offered to purchase a 35% ownership in Plaintiff’s business for $8,750,000.00. They also deny the claim that when it was time for them to pay the purchase price, they claimed that did not have the cash on hand.

 

Plaintiffs claim they are entitled to punitive damages for fraud.

 

Regarding Interrogatory No. 6 and Request No. 23, the Court finds the information requested appears reasonably calculated to lead to the discovery of admissible evidence. In Culbertson v. Jno. McCall Coal Co., 275 F.Supp. 662, 676 (DCWVa 1967), the Court held:

 

The law seems to be well settled that in civil cases, where fraud is an issue, evidence of other fraud of like character, committed by the same party, at or about the same time, is admissible to indicate a scheme, plan or design on his part broad enough to include the act in question. 20 Am.Jur. (Evidence) Sec. 303, pages 281–282, gives the general rule thusly:

 

‘The law in civil cases, as well as in criminal cases, permits proof of acts other than the one charged which are so related in character, time, and place of commission as to tend to support the conclusion that they were part of a plan or system or as to tend to show the existence of such a plan or system. Thus, when one’s motive, malice, or ill will or his intention or good or bad faith in doing or omitting to do certain acts becomes an issue, his acts, statements, and conduct on other occasions which have a bearing upon his motive or intention upon the occasion in question are competent evidence. Where several forgeries were a part of the same transaction and tend to show a common plan or scheme, evidence of other forgeries or alterations is admissible upon an issue of forgery or alteration in a civil case. Where fraud is an issue, evidence of other similar frauds perpetrated by the same person on or about the same time, is admissible particularly where the acts are all part of one general scheme or plan to defraud.’

 

In States v. Riss & Co., Inc., 139 W.Va. 1, 80 S.E.2d 9, it is said that,

 

‘In an action to recover the value of a cargo allegedly destroyed by fire following an accident, evidence of other accidents involving similar cargo, in which the cargo was allegedly destroyed by fire, which accidents occurred closely in point of time with the accident in question, is admissible under the defense of fraud to show a general plan or scheme or intent to defraud.’

 

In the case of Shingleton Bros. v. Lasure, 122 W.Va. 1, 6 S.E.2d 252, Syl. 1, it is stated,

 

‘In a civil case there may be proof of acts other than the one involved if they be so related in character, time and circumstances as to tend to establish a plan or system inclusive of the act in suit.’

 

In the case of First National Bank of Pennsboro v. Barker, 75 W.Va. 244, 83 S.E. 898, Syl. 4 reads as follows:

 

‘To prove, in a civil action, the perpetration of a criminal or fraudulent act by any person, evidence of other similar acts done by him, conduct on his part, importing the same and his admissions thereof are admissible, provided they are so connected in time, purpose and character as to indicate a scheme, plan or design on his part, broad enough to include the act in question.’

 

In the case of Piedmont Bank v. Hatcher, 94 Va. 229, 26 S.E. 505, the Court held that where fraud in the sale of property is an issue, evidence of other frauds of like character, committed by the same party, at or about the same time, is admissible. The Court held that large latitude is always given to the admission of evidence where the charge is fraud.

 

In the case of Miles F. Bixler Company v. Dunsmore, 109 W.va. 727, 156 S.E. 72, the Court held that evidence of an agent’s fraud, in procuring a similar order, was admissible to corroborate defendant’s testimony as to fraud.

 

In the case of Baldwin v. Warwick (C.C.A. 9th Cir), 213 F.2d 485, Syl. 3 reads as follows:

 

‘In action by real estate dealer for damages on ground that defendants, pursuant to conspiracy between them, had defrauded dealer by trick and device inducing amnesia in him by means of drugged drinks with result that he had sustained gambling losses, testimony of other real estate men showing similar experiences they had had with defendants was admissible for limited purpose of showing existence of over-all scheme on defendants’ part.’

 

In the case of Osborne v. Holt and Woodson, 92 W.Va. 410, Syl. 1, 114 S.E. 801 reads as follows:

 

‘Evidence of similar representations, made to others, by one soliciting subscriptions to the capital stock of a corporation, to induce purchases of such property, are admissible in a suit for damages by one who purchases stock on the faith of fraudulent representations, not as evidence of the statements made to the plaintiff in such suit, but as showing the inclination of mind of the party charged with making the representations on the subject.’

 

In the case of Wilson v. Carpenter’s Administrator, 91 Va. 183, 21 S.E. 243, a suit to cancel a contract on account of false representations by an agent, the Court held that evidence of similar statements made by the agent to other people at other times, though not competent to prove what occurred when the contract in question was made, might be ‘introduced to show the bent of the agent’s mind.

 

Thus, the evidence offered by Culbertson, tending to show the practicing of fraud and deceit by McCall against Pine Oaks, in a similar transaction, over a similar period of time, and in the same general area, though not competent to prove the misconduct charged by Culbertson in the instant case, nevertheless is admissible for the purpose of showing ‘the bent of the agent’s (McCall’s) mind,’ or as said by the Court in the case of Osborne v. Holt, supra, for the purpose of ‘showing the inclination of mind’ of McCall, the agent.

 

The Court finds the information requested in Interrogatory 6 and Request 23, as later narrowed by Plaintiffs, appears reasonably calculated to lead to the discovery of admissible evidence. The Court notes that Defendants rebuffed Plaintiffs’ offer to narrow the requests; however, under its power pursuant to F.R.Civ.P. 26(b)(2)(C)(iii) the Court shall limit both the interrogatory and the request to information regarding lawsuits filed between January 1, 2005, to the present, and involving only allegations of fraud, breach of contract, tortious interference with business relations, and/or equitable estoppel/detrimental reliance.

 

Regarding Interrogatory 9, the Court reiterates that Defendant’s general response, that the information is neither relevant nor reasonably calculated to lead to discovery of admissible evidence, especially where made two months after the request was made, and after two extensions of time, is inappropriate.

 

The Court also finds that the information may lead to discovery of admissible evidence, even if not ultimately admissible. Plaintiffs allege that an offer was made by Defendants, which was not withdrawn; they further allege that Defendants later stated they did not have the cash available to pay Plaintiffs, and asked Plaintiffs to wait. Meanwhile, Plaintiffs allegedly lost the opportunity to sell to another buyer. Defendant denies each and every one of these claims. The Court finds that the amount of compensation paid to executives is relevant in that it may indicate whether Defendants had cash on hand at the time of the alleged deal, before that time, or after. A significant change, either up or down, in such compensation may also be relevant to Plaintiffs’ allegations of fraud, and for purposes of punitive damages. Defendants did not object on the basis of the information being confidential, unduly burdensome, or overly broad. The Court therefore does not require any change to that interrogatory.

 

For all the above reasons, Plaintiffs’ Motion to Compel [D.E. 48] is GRANTED. Defendants shall have twenty-one (21) days from the date of entry of this Order to fully respond to Interrogatories 6 and 9 and Request for Production 23.

 

Pursuant to F.R.Civ.P. 37(a)(5)(A):

 

[T]he court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if:

 

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

 

(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or

 

(iii) other circumstances make an award of expenses unjust.

 

Counsel for Plaintiffs is therefore directed to file with the Court and serve on Plaintiffs within fourteen (14) days of entry of this Order an accounting of the fees and costs necessitated in filing this motion. Counsel for Defendants shall file any objections to Plaintiffs’ claims of costs and fees and the amounts claimed, within seven (7) days of the filing of the accounting. Only if both a claim for fees and an objection thereto are filed, will the Court then schedule a hearing to provide Defendants an opportunity to be heard prior to the awarding of any expenses.

 

It is so ORDERED.

 

The United States Clerk for the Northern District of West Virginia is directed to provide a copy of this order to counsel of record.