United States District Court,
D. New Jersey.
Moroccanoil, Inc., Plaintiff,
v.
JMG Freight Group LLC and Peru Transport Services LLC, Defendants.
Civil Action No. 14-5608 | Signed 10/30/2015

OPINION
ARLEO, District Judge
*1 This matter comes before the Court on the motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2) by Plaintiff Moroccanoil, Inc. against Defendant Peru Transport Services LLC. Dkt. No. 18. For the reasons stated below, the motion is GRANTED.

I. BACKGROUND
Moroccanoil, Inc. (“Plaintiff”) sues Peru Transport Services LLC1 (“Defendant”) for losing or stealing its cargo of hair and skin products. Dkt. No. 1, Comp. ¶ 6. On August 28, 2013, Plaintiff dropped off the products in good condition for transit from Kearny New Jersey to Pottsville, Pennsylvania. Id. ¶¶ 5, 7. As such, Plaintiff alleges that Defendant breached its duties as a common carries and was also negligent in handling Plaintiff’s cargo. Id. ¶ 8. As the insurer of the cargo, Plaintiff alleges it suffered $165,578.47 in damages. Id. ¶¶ 9, 11.

On June 12, 2015, Plaintiff filed the instant motion for default judgment. Dkt. No. 18.52. The motion is unopposed.

II. STANDARD OF REVIEW
“The district court has the discretion to enter default judgment, although entry of default judgments is disfavored as decisions on the merits are preferred.” Animal Sci. Prods., Inc. v. China Nat’l Metals & Minerals Imp. & Exp. Corp., 596 F.Supp.2d 842, 847 (D.N.J.2008). Before entering default judgment the court must: (1) determine it has jurisdiction both over the subject matter and parties; (2) determine whether defendants have been properly served; (3) analyze the Complaint to determine whether it sufficiently pleads a cause of action; and (4) determine whether the plaintiff has proved damages. See Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 535–36 (D.N.J.2008); Wilmington Savings Fund Soc., FSB v. Left Field Props., LLC, No. 10–4061, 2011 WL 2470672, at *1 (D.N.J. June 20, 2011). Although the facts pled in the Complaint are accepted as true for the purpose of determining liability, the plaintiff must prove damages. See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990).

Additionally, prior to granting default judgment, the Court must make explicit factual findings as to: (1) whether the party subject to the default has a meritorious defense; (2) the prejudice suffered by the party seeking default judgment; and (3) the culpability of the party subject to default. Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J.2008).

III. ANALYSIS
A. Jurisdiction & Service
The Court has both subject matter jurisdiction over this dispute and personal jurisdiction over Defendant. Subject matter jurisdiction here is present pursuant to diversity under 28 U.S.C. § 1332–Plaintiff is a New York corporation and Defendant is a Pennsylvania LLC.2 Subject matter is also present pursuant to 49 U.S.C. § 14706(d)(3), which confers jurisdiction upon federal district courts in a civil action brought against a motor carrier for delivery of goods. The Court has personal jurisdiction over Defendant because this action arises out of a contract to ship goods into New Jersey. Compl. ¶ 5. Plaintiff provided the Court with proof of service of Defendant at Defendant’s registered address at 142 Robin Lane Apartment R3, Hummelstown, PA 17036. Aff. of Service, Dkt. No. 8; Affirmation in Support of Request for Default, Dkt. No. 10–1 ¶ 3. Thus, the Court is satisfied that it has jurisdiction to enter default judgment.

B. Liability
*2 “A consequence of the entry of a default judgment is that the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Comdyne, 908 F.2d at 1149. The Complaint pleads facts which, taken as true, establish Defendant’s liability for breach of duties as a common carrier under the Carmack Amendment, 49 U.S.C. § 14706.

Under the statute, in order for a plaintiff to prove liability to recover the actual value of goods, the following three elements must be shown: “(1) delivery of the goods to the initial carrier in good condition, (2) damage of the goods before delivery to their final destination, and (3) the amount of damages.” Beta Spawn, Inc. v. FFE Transportation Services, Inc., 250 F.3d 218, 223 (3d Cir.2001). Plaintiff pleads that it delivered its cargo in good condition to Defendant. Compl. ¶ 6. The cargo was lost or stolen during transit. Id. ¶ 7. Damages are discussed below.

C. Appropriateness of Default Judgment
Next, the Court must consider: (1) whether the party subject to the default has a meritorious defense; (2) the prejudice suffered by the party seeking default judgment; and (3) the culpability of the party subject to default. Doug Brady, 250 F.R.D. at 177. The Court concludes that in the absence of any responsive pleading and based upon the facts alleged in the Complaint, Defendant does not have a meritorious defense. Second, the Court finds that Plaintiff will suffer prejudice absent entry of default judgment as he would have no other means of obtaining relief. Finally, the Court finds the Defendant acted culpably as he has been served with the Complaint, is not an infant or otherwise incompetent, and is not presently engaged in military service. See Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance Club, Inc., 175 F. App’x 519, 523 (3d Cir.2006) (holding that a defendant’s failure to respond to communications from the plaintiff and the court can constitute culpability).

D. Monetary Damages
Although the facts pled in the Complaint are accepted as true for the purpose of determining liability, the plaintiff must prove damages. See Comdyne, 908 F.2d at 1149.

Plaintiff has provided adequate proof of the damages at issue here. It provides a sworn certification by Allan Weizmann, the Chief Financial Officer of Moroccanoil, Inc., that the beauty products in Defendant’s care were worth $165,578.47. Dkt. No. 20, Weizmann Aff ¶ 2. Plaintiff also provides the sale and shipping order of all stolen or lost goods, including item numbers, descriptions, quantity, discounts, and discount prices. Id. Ex. 1. These discounted prices for all these products equal $165,578.47 in actual damages. That is sufficient to prove that amount of damages in this case.

IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Default Judgment is GRANTED. An appropriate order accompanies this opinion.

ORDER
THIS MATTER having come before the Court by way of Plaintiff Moroccanoil, Inc.’s (“Plaintiff)” Motion for Default Judgment against Defendant Peru Transport Services LLC, Dkt. No. 18;

and for the reasons stated in the accompanying opinion;

IT IS on this 30th day of October, 2015,

ORDERED that judgment in favor of Plaintiff is hereby entered against Peru Transport Services LLC for $165,578.47 in damages; it is further

*3 ORDERED that this case is closed.

All Citations
Slip Copy, 2015 WL 6673839

Footnotes
1
Plaintiff also included JMG Freight Group LLC as a defendant in this case. Those parties settled their disagreements. Dkt. No. 23.
2
There is no indication that any of the members of Defendant reside in New Jersey.

United States District Court,
D. Oregon.
Complete Distribution Services, Inc., Plaintiff,
v.
All States Transport, LLC, Defendant.
Case No. 3:13-cv-00800-SI | Signed November 02, 2015
Attorneys and Law Firms
John A. Anderson and Keven M. Anderson, ANDERSON & YAMADA, P.C., 9755 SW Barnes Road, Suite 675, Portland, OR 97225. Of Attorneys for Plaintiff.
Flavio A. Ortiz and Martin M. Rall, LACHENMEIER ENLOE RALL & ORTIZ, 9600 SW Capitol Highway, Suite 200, Portland, OR 97219. Of Attorneys for Defendant.

OPINION AND ORDER
Michael H. Simon United States District Judge
*1 Michael H. Simon, District Judge.

Before the Court is the motion of Plaintiff Complete Distribution Services, Inc. (“CDS”) asking the Court to reconsider its opinion denying CDS’s motion for summary judgment on Defendant All States Transport, LLC’s (“AST”) affirmative defense that CDS failed to perform a condition precedent. For the reasons that follow, the Court denies CDS’s motion for reconsideration.

BACKGROUND
AST signed a contract with CDS in 2010. The contract contained the following condition:
If any dispute arises about any matter covered by the terms of this Transportation Contract, the dispute must be submitted, by the party who alleges a violation filing a complaint with the Surface Transportation Board (STB). This dispute must be submitted to the STB in the form of a complaint of declaratory action. The submission shall be in accordance with the provisions of 49 C.F.R. 111 or 1117.
No court action can be taken by either party prior to the decision of the STB, and the decision of the STB shall be a binding, final, and non-appealable decision. If for any reason the STB refuses to accept the complaint, or refuses to make a ruling on the subject matter of the complaint, then the parties’ recourse shall be to the judicial system, either state or federal.
Dkt. 86-1 at 19. AST also signed a number of load confirmations that stated: “Carrier agrees … to submit to the exclusive jurisdiction of the Oregon Circuit Court and U.S. District Court located in Multnomah County, Oregon for judicial resolution of disputes ….” Dkt. 86-1 at 68.

AST asserts an affirmative defense of breach of contract. AST argues that CDS breached the 2010 Contract by failing to perform the condition precedent of bringing its claims to the STB. CDS responds that the load confirmations, in addition to a contract CDS asserts became operable in 2012, superseded the 2010 Contract and did not require AST to bring claims to the STB. Additionally, CDS, in its motion for reconsideration, argues that cases, treatises, and Interstate Commerce Commission (“ICC”) declarations establish that the STB has no jurisdiction to award damages except where the activity or non-activity alleged constitutes a violation of the Interstate Commerce Act. As a result, argues CDS, AST’s argument that breach of contract issues must be submitted to the STB is without merit. Accordingly, CDS moves the Court to dismiss AST’s affirmative defense regarding the condition precedent.

DISCUSSION
On September 30, 2015, the Court denied CDS’s motion for summary judgment on all claims, including AST’s affirmative defense of breach of contract for failure to perform a condition precedent. On October 20, 2015, CDS filed a motion for reconsideration under Federal Rule of Civil Procedure 54(b), arguing that the Court made clear errors of law and fact. CDS’s motion fails because it is based on arguments and evidence that could have previously been raised with the Court.

A district court has inherent power, derived from the common law, to rescind, reconsider, or modify an interlocutory order. City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001) (“A district court’s power to rescind, reconsider, or modify an interlocutory order is derived from the common law, not from the Federal Rules of Civil Procedure.”); United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000) (noting that a district court has the inherent authority to modify, alter, or revoke any non-final order). A district court “ ‘possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient’ ” City of Los Angeles, 254 F.3d at 885 (emphasis in original) (quoting Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981)). In addition, Federal Rule of Civil Procedure 54(b) provides that any interlocutory order “may be revised at any time before the entry of a judgment adjudicating all claims and all the parties’ rights and liabilities.”

*2 Reconsideration may be appropriate where there has been an intervening change in controlling law, new evidence has become available, or it is necessary to correct clear error or prevent manifest injustice. Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (“[T]he major grounds that justify reconsideration involve an intervening of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” (citation and quotation marks omitted) (alteration in original)). Courts grant reconsideration “only in very limited circumstances.” Shalit v. Coppe, 182 F.3d 1124, 1132 (9th Cir. 1999). Arguments and evidence that could have been included when litigating the original motion are not proper grounds for reconsideration. See id. (finding no abuse of discretion by district court in denying a motion for reconsideration when movant offered no reason for failure to provide the evidence when litigating the underlying motion); Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir. 1995) (“The district court did not abuse its discretion in declining to consider an argument raised for the first time on reconsideration without a good excuse.”); Cachil Dehe Band of Wintun Indians of Colusa Indian Cnty. v. California, 649 F. Supp. 2d 1063, 1069 (E.D. Cal. 2009) (“In the absence of new evidence or a change in the law, a party may not use a motion for reconsideration to raise arguments or present new evidence for the first time when it could reasonably have been raised earlier in the litigation.” (citing Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)).

Here, CDS raises arguments and offers evidence for the first time in its motion for reconsideration. CDS concedes that in its original motion, CDS “did not adequately address the jurisdictional issue to the court, but does so now.” Dkt. 99 at 3. In support of its motion for reconsideration, CDS submits six new exhibits: (1) a leading treatise on transportation law and liability for loss and damage; (2) an excerpt of a book currently in its fourth edition; (3) a statement from an ICC rulemaking proceeding in 1972; (4) an ICC report from 1909; (5) an ICC report from 1926; and (6) ICC reports from 1917, 1947, and 1961. CDS does not assert that any of these documents were unavailable at the time CDS filed its motion for summary judgment.

CDS could have raised its arguments and evidence in CDS’s reply, but did not. In AST’s response to CDS’s motion for summary judgment, AST argued that the STB could hear contract claims between a broker and carrier that did not arise under the Carmack Amendment. In support of this argument, AST submitted an STB decision from December 19, 1997, that AST asserted stood for the proposition that the STB will not decide Carmack Amendment disputes, including the effects of tariffs, but could possibly decide other sorts of disputes between shippers and carriers. CDS offered only a brief response in its reply, incorrectly asserting that AST waived the affirmative defense of condition precedent by failing to raise it in AST’s motion to set aside default. CDS also asserted in conclusory fashion, “The bottom line on this issue is that the STB will not entertain a request to resolve a dispute between a broker and a motor carrier.” Dkt. 93 at 25. CDS made no further argument relating to the text of the load confirmations. In its reply, CDS chose not to assert additional arguments or provide evidence in response to AST’s arguments. It is inappropriate for CDS now to do so through a motion for reconsideration.1

CONCLUSION
CDS’s Motion for Reconsideration (Dkt. 99) is DENIED.

IT IS SO ORDERED.