IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

R.J. CORMAN RAILROAD 

COMPANY/TEXAS LINE, LLC,

Plaintiff,

vs. 

TRANSLOAD AND LOGISTICS, LLC,

Defendant.

NO. 9:23-CV-00216-MJT

REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

This case is assigned to the Honorable Michael J. Truncale, United States District Judge. 

On March 4, 2024, Judge Truncale referred Plaintiff R.J. Corman Railroad Company/Texas Line, 

LLC (“R.J. Corman”)’s Motion for Default Judgment (Doc. No. 11) to the undersigned United 

States Magistrate Judge for consideration and disposition. Doc. No. 12. R.J. Corman requests the 

entry of a default judgment against Defendant Transload and Logistics, LLC (“Transload”) in the 

amount of $316,705.80, which consists of $291,450 in damages, $24,725.30 in attorney’s fees,

and $530.50 in costs, plus pre- and post-judgment interest. After careful consideration of the 

filings and applicable law, the undersigned recommends that the Court grant in part and deny in 

part R.J. Corman’s instant motion.

I. Factual and Procedural Background

This case arises from a breach of contract dispute involving a license agreement. R.J. 

Corman owns and operates a spur railroad track near Diboll, Texas. Doc. No. 1 at 3, ⁋ 6. On May 

8, 2015, R.J. Corman entered a Track License Agreement (“the Agreement”) with Transload. Id., 

⁋ 7. Under the Agreement, R.J. Corman agreed to construct a gravel road and transloading area 

adjacent to its Diboll spur track. Id., ⁋ 8. The Agreement granted a license to Transload to use the 

gravel road and transloading area to load and unload railcars. Id. 

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R.J. Corman alleges that Transload breached two different provisions of the Agreement. 

First, the usage fee provision1 provided that Transload would pay R.J. Corman a monthly usage 

fee of $750 for access and use of the transloading area. Id., ⁋⁋ 8–9. The usage fee is due in advance 

each month and commences three months after the first rail car is loaded or unloaded. Doc. No. 

11-1 at 6. Transload failed to pay the usage fee for the months of May, June, and December 2023 

and March 2024. Id. at 3. Thus, Transload owes R.J. Corman $3,000.00 in monthly usage fee 

payments. Id. 

Second, the repayment provision2 provided that Transload would repay R.J. Corman for 

the investment and construction costs for the gravel road and transloading area. Id. at 6. The 

Agreement provides that Transload would pay “$50.00 per railcar to repay [R.J. Corman] 

$289,700.00 which is the equivalent of 5,794 railcars. Failure to ship 5,794 railcars within 3 years 

from the date the first rail car is loaded or unloaded will result in [Transload] reimbursing [R.J. 

Corman] a lump sum of $50.00 per car for the shortfall.” Id. According to the facts alleged in 

R.J. Corman’s Complaint, Transload has only loaded or unloaded 25 railcars at the transloading 

area, for which it paid R.J. Corman $1,250. Doc. No. 1 at 4, ⁋ 11. Transload loaded its first railcar 

at the transloading area on April 15, 2015. Doc. No. 14-1 at 1. Thus, under the terms of the 

Agreement, Transload had until April 15, 2018 to ship 5,769 additional railcars. R.J. Corman 

contends that because Transload failed to ship 5,769 more railcars by April 15, 2018, it now owes 

R.J. Corman a lump sum of $288,450.00 for the shortfall. 

Finally, R.J. Corman contends that it is entitled to recover its attorney’s fees and costs. 

Doc. No. 11 at 11. R.J. Corman contends that under Texas law, a prevailing party may recover 

1 The usage fee provision is included in Section 2.1(a) of the Agreement. Doc. No. 11-1 at 6. 

2 The repayment provision is included in Section 2.1(b) of the Agreement. Doc. No. 11-1 at 6. 

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reasonable attorney’s fees if a claim arises from a written contract. Id. (citing TEX. CIV. PRAC. &

REM. CODE § 38.001(b)(1)‒(8)). R.J. Corman requests $24,725.30 in attorney’s fees and $530.50

in costs.3 Doc. No. 11-2 at 4, ⁋ 11. 

R.J. Corman filed its Complaint against Transload on November 27, 2023. Doc. No. 1. 

Transload was properly served on December 5, 2023. Doc. No. 6. Under FED. R. CIV. P.

12(a)(1)(A)(i), Transload’s answer was due within 21 days of service—on or before December 26, 

2023. Transload has not answered or otherwise responded to the Complaint. Doc. No. 11 at 3, ⁋ 

10. R.J. Corman applied for default against Transload, which the Clerk of Court entered on March 

1, 2024. Doc. No. 10. R.J. Corman now seeks entry of a default judgment against Transload in 

the amount of $316,705.80, which consists of $291,450 in damages; $24,725.30 in attorney’s fees;

$530.50 in costs; and pre- and post-judgment interest. See Doc. No. 11-1 at 3, ⁋ 6; Doc. No. 11-2 

at 4, ⁋⁋ 11, 13.

II. Discussion

A. Default Judgment is Procedurally Warranted

Rule 55 of the Federal Rules of Civil Procedure sets forth the procedure by which litigants 

may seek entry of a default judgment. See FED. R. CIV. P. 55. The Fifth Circuit employs a 

three-step analysis for determining when entry of a default judgment is appropriate. S.F. v. Denton

Cnty. Pub. Health, No. 4:23-CV-00864, 2024 WL 1936267, at *1 (E.D. Tex. May 2, 2024) (citing 

N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996)). First, a default occurs when the 

defendant fails to plead or otherwise respond to the complaint within the time required by Rule 12 

of the Federal Rules of Civil Procedure. FED. R. CIV. P. 55(a); N.Y. Life Ins., 84 F.3d at 141. 

Second, when the default is established by affidavit or otherwise, the clerk must enter the party’s 

3 R.J. Corman alleges that these costs consist of $402.00 for the filing fee for this lawsuit and $128.50 for the 

cost of serving Transload. Doc. No. 11-2 at 4, ⁋ 13.

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default. FED. R. CIV. P. 55(a); N.Y. Life Ins., 84 F.3d at 141. Third, after the default is entered, a 

plaintiff may apply for a default judgment. FED. R. CIV. P. 55(b); N.Y. Life Ins., 84 F.3d at 141.

Transload failed to plead or otherwise respond within the time required by Rule 12, which 

provides that a defendant’s answer must be filed within twenty-one (21) days after being served 

with the summons and complaint. FED. R. CIV. P. 12(a)(1)(A)(i). Because Transload was served 

on December 5, 2023, its answer was due on December 26, 2023. Id. To date, Transload has not 

filed any responsive pleadings or otherwise appeared in this action. Accordingly, the Clerk of 

Court properly entered default on March 1, 2024. Doc. No. 17. After the Clerk enters default, the 

clerk may enter a default judgment only if the claim is “for a sum certain or a sum that can be 

made certain by computation.” Fed. R. Civ. P. 55(b)(1). Here, R.J. Corman’s claims are for a sum 

certain based on the Agreement’s plain language, so no hearing is required. 

Entry of a default judgment is completely within the court’s discretion. Lindsey v. Prive 

Corp., 161 F.3d 886, 893 (5th Cir. 1998). Entry of a default judgment is not an abuse of discretion 

when a defendant fails to answer a complaint. See Griffin v. O’Brien, Wexler, & Assocs., LLC, 

680 F. Supp. 3d 772, 780 (E.D. Tex. 2023) (citing Bonanza Int’l, Inc. v. Corceller, 480 F.2d 613, 

614 (5th Cir. 1973), cert. denied 414 U.S. 1073 (1973)). The Fifth Circuit has set forth factors for 

courts to consider when determining whether to enter default judgment:

Relevant factors include [1] whether material issues of fact are at issue, [2] whether 

there has been substantial prejudice, [3] whether the grounds for default are clearly 

established, [4] whether the default was caused by a good faith mistake or excusable 

neglect, [5] the harshness of a default judgment, and [6] whether the court would 

think itself obliged to set aside the default on the defendant’s motion. 

Lindsey, 161 F.3d at 893 (citation omitted).

1. Factor One: Issues of Material Fact

In the present case, the facts asserted in R.J. Corman’s complaint are well-pleaded, and 

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there are no unresolved issues of material fact. By failing to answer the complaint, Transload 

admits the well-pleaded factual allegations and “[is] barred from contesting on appeal the facts 

thus established.” Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 

1975). Once a defendant is in default, the court accepts as true all facts set forth in the complaint 

aside from those relating to damages. See Frame v. S-H, Inc., 967 F.2d 194, 205 (5th Cir. 1992) 

(“Unlike questions of actual damage, which must be proved in a default situation, conduct on 

which liability is based may be taken as true as a consequence of the default”).

2. Factors Two and Five: Substantial Prejudice or Harshness of Default 

Judgment

Transload will not suffer substantial prejudice by entry of a default judgment. Transload 

has not filed an answer or otherwise defended this matter, nor has it indicated that it will appear or 

otherwise respond. Nothing in the record indicates a default judgment will substantially prejudice 

Transload. Seven months have elapsed since Transload was served with this lawsuit. Transload’s

dilatoriness and noncompliance establishes that any substantial prejudice or harshness in entering 

default is clearly outweighed by the prejudice to R.J. Corman if the court fails to enter judgment 

in its favor. 

3. Factor Three: Whether the Grounds for Default are Clearly Established

Transload has failed to plead or otherwise defend this lawsuit after R.J. Corman properly 

served it on December 5, 2023. Doc. No. 6. The Clerk appropriately entered a default against 

Transload, and R.J. Corman has filed a motion for default judgment. Doc. Nos. 10, 11. R.J. 

Corman filed a sworn statement verifying that Transload does not appear to currently serve in the 

military and that it is not a minor or incompetent person. Doc. No. 11-3; Twist and Shout Music 

v. Longneck Xpress, N.P., 441 F. Supp. 2d 782, 783 (E.D. Tex. 2006) (citing 50 U.S.C. app. § 

521(b)(1)); FED. R. CIV. P. 55(b)(2)). Moreover, R.J. Corman has provided an affidavit showing 

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the amount due for a sum certain, dispensing with the requirement for a hearing to determine 

damages. Doc. Nos. 11-1, 11-2; FED. R. CIV. P. 55(b)(1), (2). Thus, the requirements of Rule 55 

are satisfied, and the court may consider default judgment. 

4. Factors Four and Six: Good Faith Mistake, Excusable Neglect, and Setting 

Aside the Default

The record is devoid of facts showing any excusable neglect or good faith mistake on behalf 

of Transload. In any event, Transload can still show excusable neglect or good faith mistake to 

set a default judgment aside. See FED.R.CIV. P. 55(c) (“The court may set aside an entry of default 

for good cause, and it may set aside a final default judgment under Rule 60(b).”) 

B. Basis for Default Judgment in the Pleadings

After establishing that default is procedurally warranted, the undersigned must assess the 

substantive merits of R.J. Corman’s claims and determine whether there is a sufficient basis in the 

pleadings for judgment in its favor. Nishimatsu, 515 F.2d at 1206. While it is “firmly established” 

that a district court assumes the truth of facts asserted by a plaintiff against a defaulting defendant, 

a plaintiff is “not entitled to a default judgment as a matter of right.” Escalante v. Lidge, 34 F.4th 

486, 492 (5th Cir. 2022). “[E]ven if a defendant defaults, a court may still deny default judgment 

if the plaintiff has failed to state a claim on which relief can be granted.” Id. at 493. 

R.J. Corman alleges a breach of contract claim and, alternatively, if an express contract is

not found, a claim for quantum meruit and unjust enrichment against Transload. Doc. No. 1 at 5–

6. R.J. Corman alleges that Transload breached the Agreement and requests a default judgment

against Transload in the amount of $316,705.80, which consists of $291,450 in damages,

$24,725.30 in attorney’s fees, and $530.50 in costs, plus pre- and post-judgment interest. See Doc. 

No. 11-1 at 3, ⁋ 6; Doc. No. 11-2 at 4, ⁋⁋ 11, 13. 

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R.J. Corman’s request for $291,450.00 in damages is premised on two distinct breaches of

the Agreement by Transload. First, Transload breached the usage fee provision by failing to pay 

the $750.00 monthly usage fee in May, June, and December 2023 and March 2024, and thus owes 

R.J. Corman $3,000.00. Id., ⁋ 12 (citing Section 2.1(a) of the Agreement). Second, Transload

breached the repayment provision and owes R.J. Corman a lump sum of $288,450.00 for the 

shortfall in railcars shipped. Doc. No. 1 at 4, ⁋ 11 (citing Section 2.1(b) of the Agreement). The 

undersigned will consider each breach of the Agreement separately.

1. Breach of the Usage Fee Provision

The undersigned finds that R.J. Corman has established a sufficient basis in the pleadings 

for judgment in its favor regarding breach of the usage fee provision in Section 2.1(a) of the 

Agreement. To plead a viable breach of contract claim, R.J. Corman must allege that “(1) a valid 

contract exists; (2) the plaintiff performed or tendered performance as contractually required; (3) 

the defendant breached the contract by failing to perform or tender performance as contractually 

required; and (4) the plaintiff sustained damages due to the breach.” Valley Forge, Inc. v. CK

Constr., Inc., 677 S.W.3d 127, 132 (Tex. App.—El Paso 2023, no pet.); Conn Credit I, L.P. v. TF

LoanCo III, L.L.C., 903 F.3d 493, 499–500 (5th Cir. 2018). R.J. Corman has established each 

element of this claim based on the allegations in its pleadings with respect to the usage fee 

provision. See Doc. No. 1. Accordingly, R.J. Corman is entitled to a default judgment in the 

amount of $3,000.00 for Transload’s breach of the usage fee provision. 

2. Breach of the Repayment Provision

 However, the undersigned finds that the breach of the repayment provision in Section 

2.1(b) of the Agreement is time-barred by the statute of limitations for breach of contract claims.

4

 

4 Under Texas law, the statute of limitations for quantum meruit claims is four years, so to the extent R.J. 

Corman asserts such claims, they are also barred by the statute of limitations. See Keith v. J.D. Byrider Sys., LLC, 

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Under Texas law, the limitations period for a breach of contract claim is four years. TEX. CIV.

PRAC. & REM. CODE §§ 16.004, 16.051; see also Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 

699, 707 (Tex. 2021). A claim accrues when a defendant’s wrongful conduct causes the claimant 

to suffer a legal injury. Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 

807, 814 (Tex. 2021). Once a defendant’s wrongful conduct causes a legal injury, “the injured 

party’s claims based on that wrongful conduct accrue—and the limitations period begins to run—

even if (1) the claimant does not yet know that a legal injury has occurred, (2) the claimant has not 

yet experienced, or does not yet know the full extent of, the legal injury, (3) the claimant does not 

yet know the specific cause of the injury or the party responsible for it, (4) the wrongful conduct 

later causes additional legal injuries, or (5) the claimant has not yet sustained or cannot yet 

ascertain any or all of the damages resulting from the legal injuries.” Id. (collecting cases). “[A] 

cause of action for breach of contract accrues at the moment the contract is breached.” Archer v.

Tregellas, 566 S.W.3d 281, 288 (Tex. 2018).

The repayment provision provides that Transload would pay “$50.00 per railcar to repay 

[R.J. Corman] $289,700.00 which is the equivalent of 5,794 railcars. Failure to ship 5,794 railcars 

within 3 years from the date the first rail car is loaded or unloaded will result in [Transload] 

reimbursing [R.J. Corman] a lump sum of $50.00 per car for the shortfall.” Doc. No. 11-1 at 6. 

Transload first loaded a railcar at the Diboll, Texas station on April 15, 2015. Doc. No. 14-1 at 1. 

Thus, beginning on April 15, 2015, Transload was obligated to ship 5,794 total railcars and pay

$50.00 per railcar shipped by April 15, 2018. If Transload failed to do so, it would thereafter be 

obligated to pay R.J. Corman for any shortfall in railcars shipped under $289,700.00. The facts 

alleged in R.J. Corman’s Complaint establish that Transload failed to ship 5,794 total railcars and 

No. 3:14-CV-1317-D, 2016 WL 6139098, at *4 (N.D. Tex. Oct. 20, 2016) (noting that the statute of limitations for 

quantum meruit claims is four years under Texas law). 

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pay $50.00 per railcar to R.J. Corman. Therefore, Transload owed R.J. Corman a lump sum of 

$288,450.00 for the shortfall. The undersigned finds that R.J. Corman’s claim for breach of the 

repayment provision accrued on April 16, 2018—the day it became clear that Transload had 

breached the repayment provision.

Because the claim accrued on April 16, 2018, under the Texas statute of limitations for 

breach of contract claims, R.J. Corman had until April 16, 2022 to file its claim. R.J. Corman

waited until November 27, 2023 to file this lawsuit, which is one year and seven months after that 

date. The undersigned finds that R.J. Corman’s claim for breach of the repayment provision is 

time-barred by the statute of limitations. Courts may consider relevant statutes of limitation when 

ruling on motions for default judgment. See, e.g., Hamad v. Ctr. for Study of Popular Culture, 

No. A-06-CA-285-SS, 2007 WL 9701889, at *2 (W.D. Tex. Jan. 17, 2007), aff’d sub nom. Hamad

v. Ctr. for Jewish Cmty. Stud., 265 F. App’x 414 (5th Cir. 2008) (denying motion for default 

judgment because plaintiff’s claims were barred by applicable statutes of limitation); see also 

Stegeman v. Georgia, 290 F. App’x 320, 323 (11th Cir. 2008) (affirming denial of default judgment 

where claim was time-barred by the statute of limitations). 

Further, it is well-established that even when a defendant is in default, a plaintiff is not 

entitled to a default judgment as a matter of right, as a court “may still deny default judgment if 

the plaintiff has failed to state a claim upon which relief can be granted.” See Escalante, 34 F.4th 

at 492–93. Entry of a default judgment is within the court’s discretion. Lindsey, 161 F.3d at 893. 

The undersigned finds that R.J. Corman has failed to state a claim upon which relief can be granted

regarding its claim for breach of the repayment provision. Accordingly, the instant motion for 

default judgment should be denied as to R.J. Corman’s claim for breach of the repayment provision 

in Section 2.1(b) of the Agreement. 

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3. Attorney’s Fees

R.J. Corman requests $24,725.30 in attorney’s fees based on the work of attorney Kenneth 

W. Bullock, II (4.4 hours at $550 per hour), attorney Saira S. Siddiqui, (15.7 hours at $425 per 

hour), and paralegal Bridgette Hopkins (0.2 hours at $290 per hour). State law governs the award 

of attorney’s fees in diversity cases. Transverse, L.L.C. v. Iowa Wireless Servs., L.L.C., 992 F.3d 

336, 344 (5th Cir. 2021). The Texas Civil Practice and Remedies Code provides that a “person 

may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount 

of a valid claim and costs, if the claim is for . . . an oral or written contract.” TEX. CIV. PRAC. &

REM. CODE § 38.001(8). “[A]n award of reasonable attorney’s fees is mandatory under § 38.001 

if the plaintiff recovers damages for a breach of contract claim.” Theriot v. Transamerica Life Ins.

Co., 354 F. Supp. 3d 713, 719 (E.D. Tex. 2017). A court “has the discretion to determine the 

appropriate amount of attorney’s fees following a successful claim under section 38.001.” Crisalli

v. ARX Holding Corp., 177 F. App’x 417, 421 (5th Cir. 2006) (citing Coffel v. Stryker Corp., 284 

F.3d 625, 640–41 (5th Cir. 2002)). 

The undersigned finds that R.J. Corman is entitled to attorney’s fees for its breach of 

contract claim related to Transload’s breach of the usage fee provision, but not for Transload’s 

breach of the repayment provision. The affidavit submitted by Transload in support of its request 

for attorney’s fees does not segregate the fees requested between these two distinct breaches of the 

Agreement. “Where fees are authorized, fee claimants have always been required to segregate 

fees between claims for which they are recoverable and claims for which they are not.” 

Transverse, 992 F.3d at 344 (internal quotations omitted). “The party seeking fees bears the 

burden of properly segregating them.” Id. An exception to the fee segregation requirement exists 

where “the fees are based on claims arising out of the same transaction that are so intertwined and 

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inseparable as to make segregation impossible.” Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 

2017).

Accordingly, R.J. Corman is ordered to provide the court with supplemental briefing 

addressing the segregation of attorney’s fees between the two breaches of the Agreement: the 

breach of the monthly usage provision in Section 2.1(a) and breach of the repayment provision in 

Section 2.1(b). If R.J. Corman believes segregation is not possible, the supplemental briefing 

should address the exception to the fee-segregation requirement. 

4. Costs

R.J. Corman requests $530.50 in costs. Doc. No. 11-2 at 4, ⁋ 13. This includes $402.00 

for filing fees and $128.50 in fees expended toward serving Transload with the lawsuit. Id. Rule 

54 of the Federal Rules of Civil Procedure permits the collection of costs other than attorney’s fees 

by the prevailing party. See FED R. CIV. P. 54(d)(1) (providing that “[u]nless a federal statute, 

these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be 

allowed to the prevailing party”). The undersigned finds that the cost of the $402.00 filing fee is 

recoverable. See 28 U.S.C. § 1920. 

However, the undersigned finds that the cost of $128.50 for a private process server is not 

recoverable. A prevailing party cannot recover costs for private process servers absent exceptional 

circumstances. Zastrow v. Houston Auto M. Imp. Greenway, Ltd., 695 F. App’x 774, 780 (5th Cir. 

2017) (per curiam). Although the Fifth Circuit has not explicitly defined “exceptional 

circumstances,” in any case, R.J. Corman presents no evidence of any such exceptional 

circumstances. See Marmillion v. Am. Int’l Ins. Co., 381 F. App’x 421, 431 (5th Cir. 2010)

(affirming denial of private process server fees because prevailing party failed to show exceptional 

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circumstances). Accordingly, R.J. Corman is entitled to only $402.00 in costs, which is the cost 

of the filing fee. 

5. Pre-Judgment and Post-Judgment Interest

R.J. Corman also seeks pre- and post-judgment interest. Doc. No. 11 at 13. Under 28 

U.S.C. § 1961(a), in diversity cases, pre-judgment interest rates are governed by state law, while 

post-judgment interest is calculated at the federal rate. See Boston Old Colony Ins. Co. v. Tiner

Assocs. Inc., 288 F.3d 222, 234 (5th Cir. 2002). In Texas, pre-judgment interest for a breach of 

contract claim is governed by Texas common law. Int’l Turbine Servs., Inc. v. VASP Brazilian

Airlines, 278 F.3d 494, 500 (5th Cir. 2002). Texas common law allows pre-judgment interest to 

accrue at the same rate as post-judgment interest on damages awarded for breach of 

contract. Id. (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507,

528 (Tex. 1998)).

Federal law provides that “[i]nterest shall be allowed on any money judgment in a civil 

case recovered in a district court.” 28 U.S.C. § 1961(a). An award of post-judgment interest is 

mandatory under 28 U.S.C. § 1961 and is awarded as a matter of course. See Meaux Surface Prot.,

Inc. v. Fogelman, 607 F.3d 161, 173 (5th Cir. 2010); Reeves v. Int’l Tel. & Tel. Corp., 705 F.2d 

750, 751 (5th Cir. 1983). The post-judgment interest accrues at the rate determined under 28 

U.S.C. § 1961(a). See DP Sol., Inc. v. Rollins, Inc., 353 F.3d 421, 435 (5th Cir. 2003). Such 

interest shall be calculated from the date of the entry of judgment, at the rate equal to the weekly 

average one-year constant maturity Treasury yield, as published by the Board of Governors of the 

Federal Reserve System, for the calendar week preceding the date of judgment. 28 U.S.C. § 

1961(a). Interest shall be computed daily to the date of payment and compounded annually. See

28 U.S.C. § 1961(b). Accordingly, the undersigned further finds that pre-judgment and postCase 9:23-cv-00216-MJT Document 15 Filed 07/18/24 Page 12 of 14 PageID #: 187
13

judgment interest at the rate specified by 28 U.S.C. § 1961 should be applied to the award of 

damages upon entry of default judgment in favor of R.J. Corman. 

III. Conclusion

The undersigned recommends that Plaintiff R.J. Corman’s Motion for Default Judgment 

(Doc. No. 11) should be GRANTED with respect to its breach of contract claim for Defendant 

Transload’s breach of Section 2.1(a) of the Track License Agreement. The motion should be 

DENIED with respect to its breach of contract claim for Defendant Transload’s breach of Section 

2.1(b) of the Track License Agreement because this claim is barred by the statute of limitations. 

It is further ORDERED that Plaintiff R.J. Corman must SUPPLEMENT the record with 

additional briefing addressing the segregation of attorney’s fees for its breach of contract claims

as described in this report. 

Accordingly, the undersigned recommends that a Final Judgment be entered as follows:

(1) Damages in the amount of $3,000.00;

(2) Court costs in the amount of $402.00;

(3) Attorney’s fees related to Defendant Transload’s breach of Section 2.1(a) of the 

Track License Agreement, to be determined in accordance with the 

supplemental briefing ordered by the court;

(4) Pre-judgment and post-judgment interest as described in this report. 

IV. Objections

Pursuant to 28 U.S.C. § 636(b)(1)(C), each party to this action has the right to file 

objections to this Report and Recommendation. Objections to this Report must (1) be in writing, 

(2) specifically identify those findings or recommendations to which the party objects, (3) be 

served and filed within 14 days after being served with a copy of this Report, and (4) be no more 

than eight (8) pages in length. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2); E.D. TEX.

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CIV. R. CV-72(c). A party who objects to this Report is entitled to a de novo determination by the 

United States District Judge of those proposed findings and recommendations to which a specific 

objection is timely made. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(3).

A party’s failure to file specific, written objections to the proposed findings of fact and 

conclusions of law contained in this Report, within 14 days of being served with a copy of this 

Report, bars that party from: (1) entitlement to de novo review by the United States District Judge 

of the findings of fact and conclusions of law, and (2) appellate review, except on grounds of plain

error, of any such findings of fact and conclusions of law accepted by the United States District 

Judge. See Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988); Douglass v. United Servs. 

Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc). 

_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 18th day of July, 2024.

Case 9:23-cv-00216-MJT Document 15 Filed 07/18/24 Page 14 of 14 PageID #: 189