UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

PIANO WELLNESS, LLC, :

: Civ. A. No. 11-1601 (NLH)(AMD)

Plaintiff, :

v. :

: OPINION 

CHARLOTTE K. WILLIAMS, a :

citizen of the State of :

Georgia, individually and :

trading as :

KeyboardWellness.com, :

:

Defendant. :

 

APPEARANCES:

ELLIOTT J. STEIN 

STEVENS & LEE, PC 

100 LENOX DRIVE 

SUITE 200 

LAWRENCEVILLE, NJ 08648

On behalf of Plaintiff

CHARLOTTE K. WILLIAMS 

2550 SANDY PLAINS ROAD 

SUITE 225 

MARIETTA, GA 30066

Defendant appearing pro se

HILLMAN, District Judge

The procedural history of this case is long and tortured, 

and, among other events, has involved an aborted jury trial that 

was deemed a mistrial on November 14, 2014 due to Defendant’s 

purported health problems1 (Docket No. 130), three orders directing 

 

1 On November 13, 2014, at the end of the Court’s two-hour long 

conference with the parties regarding trial documents in 
2

Defendant to engage in mediation (Docket No. 148, 151, 179), one 

adjourned contempt hearing due to Defendant’s notice that she 

would not attend (Docket No. 162), an Order to Show Cause as to 

why Defendant should not undergo an independent medical 

examination (Docket No. 164), a second contempt hearing at which 

Defendant failed to appear (Docket No. 190), an Order to Show 

Cause why default judgment should not be entered against Defendant 

(Docket No. 191), a hearing on the Order to Show Cause regarding 

default judgment, at which Defendant failed to appear (Docket No. 

 

preparation for opening statements before the jury, which was to 

report for service at 1:00 p.m., Defendant represented to the 

Court that she was suffering from an illness that required 

immediate emergency medical care. Defendant went to the Cooper 

University Hospital emergency department in Camden, New Jersey. 

The Court ordered Defendant to appear at the courtroom upon her 

discharge from the hospital, and provide the Court with medical 

documentation regarding her hospital treatment. (Docket No. 125.) 

Plaintiff never appeared, and instead telephoned the Court on 

November 14, 2014 that she wanted the Court to release the jury 

and declare a mistrial due to her inability to appear for medical 

reasons. (Docket No. 129.) A year later, the nature and extent 

of Defendant’s medical condition remained unclear. (See Docket 

No. 164.) The only medical record provided by Defendant to 

support her contention that her medical condition precludes her 

from participating in the litigation and mediation since the 

mistrial is a half-page progress note of an EEG performed on 

August 23, 2013, which states that the EEG suggests “mild left 

temporal dysfunction that is not specific for etiology. Clinical 

correlation is advised.” (Docket No. 192 at 4.) Defendant 

provided that document on March 4, 2016, despite the Court’s prior 

orders in 2014 and 2015 directing Defendant to provide medical 

documentation to support her contentions. Defendant has never 

submitted a note from any of her treating physicians that explains 

a medical basis for her claimed impairments.
3

198), and an order granting default against Defendant (Docket No. 

200). 

Currently pending is the motion of Plaintiff for default 

judgment in its favor (Docket No. 207), and Defendant’s motion to 

vacate default against her, as well as vacate several other Court 

orders, pursuant to Fed. R. Civ. P. 60(b)(1), (3), (6) (Docket No. 

202). 

DISCUSSION

A. Subject matter jurisdiction

Originally, this Court exercised subject matter jurisdiction 

over this action pursuant to 28 U.S.C. § 1338(a) because 

Plaintiff’s original complaint included claims for trademark 

infringement. Plaintiff filed an amended complaint on December 

18, 2015, wherein it removed its trademark infringement claims and 

instead asserted claims for breach of contract and declaratory 

judgment. Consequently, this Court exercises subject matter 

jurisdiction over this action pursuant to 28 U.S.C. § 1332(a) 

insofar as the amount in controversy exceeds $75,000.00 and 

Plaintiff is a citizen of New Jersey, and Defendant is a citizen 

of Georgia, and 28 U.S.C. §§ 2201 and 2202, insofar as Plaintiff

seeks a declaratory judgment in respect of an actual controversy 

between Plaintiff and Defendant.

B. Rule 60(b), Rule 55(b)(2), and the Poulis factors

For Defendant’s motion to vacate, Rule 60(b) provides:
4

(b) Grounds for Relief from a Final Judgment, Order, or 

Proceeding. On motion and just terms, the court may relieve a 

party or its legal representative from a final judgment, 

order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable 

diligence, could not have been discovered in time to move for 

a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), 

misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; 

it is based on an earlier judgment that has been reversed or 

vacated; or applying it prospectively is no longer equitable; 

or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

For Plaintiff’s motion for default judgment under Fed. R. 

Civ. P. 55(b)(2), “[t]hree factors control whether a default 

judgment should be granted: (1) prejudice to the plaintiff if 

default is denied, (2) whether the defendant appears to have a 

litigable defense, and (3) whether defendant's delay is due to 

culpable conduct.” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d 

Cir. 2000); United States v. $55,518.05 in U.S. Currency, 728 F.2d 

192, 195 (3d Cir. 1984).

In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 

868 (3d Cir. 1984), the Third Circuit outlined the following

factors that should be considered prior to dismissing a case: (1) 

the extent of the party's personal responsibility; (2) the 
5

prejudice to the adversary caused by the failure to meet 

scheduling orders and respond to discovery; (3) a history of 

dilatoriness; (4) whether the conduct of the party or the attorney 

was willful or in bad faith; (5) the effectiveness of sanctions 

other than dismissal, which entails an analysis of alternative 

sanctions; and (6) the meritoriousness of the claim or defense.

C. Analysis

1. Application of Rule 60(b), Rule 55(b)(2), and 

Poulis factors

The Court finds that the circumstances of this case meet the 

three elements of the default judgment standard and the six Poulis

factors: 

(1) Defendant’s personal responsibility: From the mistrial 

on, the cause for all of the Court’s numerous orders falls 

squarely on Defendant. Defendant repeatedly claims that her poor 

health and financial conditions have precluded her from complying 

with the Court’s Orders, but she has failed to provide competent 

documentation to support her claims – even ignoring this Court’s 

explicit orders to do so.

(2) Prejudice to Plaintiff: Plaintiff has had to waste time 

and resources to respond to Defendant’s conduct and fruitlessly 

attempt to engage in mediation to resolve the parties’ dispute.

(3) History of dilatoriness: For almost three years, 

Defendant has flouted this Court’s orders many times despite being 

provided with numerous opportunities to participate in the 
6

litigation of Plaintiff’s claims against her, including before 

this Court and through a neutral mediator.2

(4) As the procedural history of the case and Defendant’s

years of dilatory - and at times obstructionist - conduct shows, 

Defendant’s actions have been willful and in bad faith. 

(5) Effectiveness of sanctions other than dismissal: No 

sanction other than default judgment entered in Plaintiff’s favor 

would be effective. The Court has issued numerous orders to 

Defendant to compel her participation in the litigation and 

mediation, and has held Defendant in contempt of those orders when 

 

2 In a March 28, 2017 letter from the mediator to this Court, the 

mediator reported that “efforts to achieve a settlement have been 

unsuccessful, but I have continued to maintain communication with 

both parties. In an email I received from [defendant], Charlotte 

Williams, earlier this month, Ms. Williams questioned my 

neutrality as a mediator, and suggested that I made statements to 

her which led her to that conclusion. I will reserve any comment 

on the accuracy of Ms. Williams’ assertions. I thought it 

appropriate and indeed necessary for me to advise the Court of 

this communication.” (Docket No. 223.) Defendant responded to 

the mediator’s letter in an April 3, 2017 letter, in which she 

contended that her health conditions continue to affect her 

ability to defend herself, that Plaintiff’s counsel threatened 

her, and that the mediator called her a liar. (Docket No. 224.) 

Plaintiff’s counsel refuted Defendant’s accusations about himself 

and the mediator in an April 4, 2017 letter, noting that “we have 

never seen any evidence of partiality by the Court-appointed 

mediator,” as he “has, at all times, acted professionally and 

courteously to all involved in the case,” and “[t]o his credit, he 

has continued to work with Ms. Williams despite her continued 

refusal to engage in any meaningful settlement discussions.” 

(Docket No. 221) There is no basis to contest the neutrality of 

the court-appointed mediator in this matter whose service to the 

Court and the parties is appreciated. Plaintiff’s unfounded 

allegations and scurrilous allegations are yet another example of 

what is a clear and intentional pattern of delaying and 

frustrating the orderly progression of this litigation.
7

she has repeatedly failed to comply. Even after the Court found 

Defendant in default and indicated its intention of entering 

default judgment against her, Defendant continued to ignore the 

Court and regurgitate the same unsupported excuses. Despite the 

Court’s every effort to provide Defendant with her right to a jury 

trial, and, when that failed, facilitating a neutral mediator to 

resolve the dispute, it is clear that default judgment against 

Defendant is the only available remedy to Plaintiff.

(5) Meritoriousness of Defendant’s defenses: Because 

Defendant has disregarded this Court’s numerous orders and has 

failed to participate in good faith in the litigation process or 

the alternative of court-sanctioned mediation, the Court is unable 

to fully assess the merit of Defendant’s defenses to Plaintiff’s 

claims against her. Prior to the mistrial, the Court considered 

Defendant’s arguments, ruled on substantive motions in which she 

presented her defenses, and preserved her defenses after the 

mistrial by ordering mediation where a neutral arbiter would hear 

her defenses and consider their merit. There is, however, only so 

much this Court can do. Defendant’s unwillingness to contest this 

matter on the merits at every turn compels the conclusion that 

Defendant’s defenses are lacking in merit.

For the same reasons, Defendant has not demonstrated the 

grounds for relief from the Court’s orders under any of the six 

options provided by Rule 60(b).
8

2. Scope of Judgment and Damages

With regard to the determination of the scope of the judgment 

and the assessment of Plaintiff’s damages, the Court “may conduct 

hearings . . . when . . . it needs to: . .. (B) determine the 

amount of damages; . . . ,” Fed. R. Civ. P. 55(b)(2), and “the 

‘hearing’ may be one in which the court asks the parties to submit 

affidavits and other materials from which the court can decide the 

issue.” Smith v. Kroesen, 2015 WL 4913234, at *5 (D.N.J. 2015)

(citing Jonestown Bank and Trust Co. v. Automated Teller Mach., 

Services, Inc., 2012 WL 6043624, *4 (M.D. Pa. 2012) (citing 10 

James Wm. Moore, et al., Moore's Federal Practice § 55.32[2][c] 

(Matthew Bender ed. 2010)).

Plaintiff claims the following allegations in its amended 

complaint (Docket No. 174) against Defendant, which will be deemed 

admitted. See Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d 

Cir. 1990) (providing that in considering default judgment, every 

“well-pled allegation” of the complaint, except those relating to 

damages, are deemed admitted):

Defendant breached the September 15, 2008 settlement 

agreement entered between Plaintiff and Defendant to settle 

prior litigation regarding certain trademarks and copyrights 

by “using a mark or symbol likely to cause confusion with 

PIANO WELLNESS marks . . . and represent[ing] to any party 

that she owns rights to said marks. . .”; by failing and 

refusing to assign to WELLNESS her undisclosed domains “that 

are likely to create confusion with the PIANO WELLNESS mark 

and domain,” including, but not limited to 

www.keyboardwellness.com; by continuing to assert that she 

has right as a shareholder of PWEC; by failing to return and 

subsequently sell DVDs in violation of Sections 10 and 11 of 
9

the Settlement Agreement; by disparaging WELLNESS in 

violation of Section 13 of the Settlement Agreement; and by 

asserting claims against WELLNESS that are barred by Section 

2 of the Settlement Agreement.

(Amended Compl., Docket No. 174 at 8-9.)

Plaintiff seeks the following relief for its damages: 

A. Awarding compensatory damages in favor of WELLNESS and 

against WILLIAMS; and

B. Entering a preliminary and permanent injunction 

restraining WILLIAMS, together with their officers, 

employees, agents, successors and assigns or others acting in 

concert with her, from using the trademark “KEYBOARD 

WELLNESS.COM” or any trademark likely to cause confusion with 

WELLNESS’ trademarks; and

C. Directing WILLIAMS to assign the domain 

www.keyboardwellness.com to WELLNESS, as well as other 

domains which she owns that are likely to create confusion 

with the PIANO WELLNESS mark and domain; and

D. Directing WILLIAMS to return all copies of the DVDs 

described in Section 10. and 11. of the Settlement Agreement; 

and

E. Directing WILLIAMS to comply with Section 13 of the 

Settlement Agreement; and

F. Declaring that WILLIAMS can no longer assert claims 

against WELLNESS for trademark or copyright infringement, or 

any other claims on account of or which grew out of the 

[Earlier Litigation] including, without limitation, any and 

all known or unknown claims which resulted or may thereafter 

resulted from [the Earlier Litigation] excepting only claims 

for breach of the Settlement Agreement; and

G. Entering a preliminary and permanent injunction 

restraining WILLIAMS, together with their officers, 

employees, agents, successors and assigns or others acting in 

concert with her, from asserting claims against WELLNESS for 

trademark or copyright infringement, or any other claims on 

account of or which grew out of the [Earlier Litigation] 

including, without limitation, any and all known or unknown 

claims which resulted or may thereafter resulted from [the 

Earlier Litigation] excepting only claims for breach of the 
10

Settlement Agreement; and

H. Awarding of attorneys’ fees and costs pursuant to 

WELLNESS.

(Amended Compl., Docket No. 174 at 9-11.)

The Court finds that the facts contained in Plaintiff’s 

amended complaint, supplemented with a certification of 

Plaintiff’s principal, Sheila Page, (Docket No. 207-2 at 12-90), 

and deemed admitted to by Defendant, support a finding that 

Defendant breached the parties’ settlement agreement. See Nolan 

by Nolan v. Lee Ho, 577 A.2d 143, 146 (N.J. 1990) (“A settlement 

agreement between parties to a lawsuit is a contract.”); Sery v.

Federal Business Centers, Inc., 616 F. Supp. 2d 496, 507 (D.N.J. 

2008) (discussing New Jersey law) (explaining that to prove a 

breach of a contract, a plaintiff must show that a valid agreement 

existed, defendant materially breached the terms of the agreement, 

and plaintiff suffered damages as a result of the breach).

The Court further finds that Plaintiff is entitled to the 

declaratory and injunctive relief it requests. See Totaro, Duffy, 

Cannova and Company, L.L.C. v. Lane, Middleton & Company, L.L.C., 

921 A.2d 1100, 1107 (N.J. 2007) (citation omitted) (“Judicial 

remedies upon breach of contract fall into three general 

categories: restitution, compensatory damages and performance . . 

. Restitution returns the innocent party to the condition he or 

she occupied before the contract was executed[;] compensatory 

damages put the innocent party into the position he or she would 
11

have achieved had the contract been completed[;] performance makes 

the non-breaching party whole by requiring the breaching party to 

fulfill his or her obligation under the agreement.”).

Plaintiff requests $75,000 in compensatory damages, where 

Page’s certification states that because of Defendant’s breach, 

Plaintiff suffered a loss of $25,807.00 instead of an expected 

profit of $30,000 to $40,000, totaling a $50,000 loss in 2009, and 

that in 2011, Plaintiff suffered another $25,000 in damages. The 

Court finds that Plaintiff is entitled to compensatory damages, 

but the Court also finds that Plaintiff’s claim of $75,000 in 

losses is unsupported by any documentary evidence, which is 

insufficient to establish damages on default judgment for breach 

of contract. See Paniagua Group, Inc. v. Hospitality Specialists, 

LLC, 183 F. Supp. 3d 591, 606 (D.N.J. 2016) (finding insufficient 

the evidence to support claim for damages for a default judgment 

on a breach of contract claim where the plaintiff only submitted 

an affidavit that simply stated that defendants owed $255,415.05, 

noting that the plaintiff did not provide any invoices or other 

documentary evidence to support its damages claim with respect to 

the amount it was owed by defendants) (citing Mapssy Int'l, Inc. 

v. Hudson Valley Trading Inc., No. 08–3037, 2012 WL 4889229, at *6 

(D.N.J. Oct. 11, 2012) (concluding that the plaintiff had asserted 

a specific damage amount based on a breach of contract but had 

“not submitted documentation to support” the damages claim and 
12

that the court would only enter a damages judgment “[u]pon receipt 

of memoranda and proof of [the] [d]efendant's outstanding 

debts”)).

The Court also finds that Plaintiff is entitled to mediation 

fees and attorney’s fees and costs that she incurred, as detailed 

in Page’s certification, (Docket No. 207-2 at 53-90), as a 

sanction for Defendant’s willful and culpable conduct, described 

above and further evidenced by the record. See Republic of 

Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 (3d Cir. 

1994) (“Our legal system will endure only so long as members of 

society continue to believe that our courts endeavor to provide 

untainted, unbiased forums in which justice may be found and done. 

Thus, it is beyond peradventure that district courts have broad 

authority to preserve and protect their essential functions . . ., 

[and] district courts have tools available to protect their truthseeking process,” including numerous Federal Rules of Civil 

Procedure, Congress-enacted laws, and a court’s inherent 

authority.); see also Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 

(1991) (internal quotations, alterations, and citations omitted):

There are ample grounds for recognizing . . . that in 

narrowly defined circumstances federal courts have inherent 

power to assess attorney's fees against counsel, even though 

the so-called “American Rule” prohibits fee shifting in most 

cases. As we explained . . ., these exceptions fall into 

three categories. The first, known as the “common fund 

exception,” derives not from a court's power to control 

litigants, but from its historic equity jurisdiction, and 

allows a court to award attorney's fees to a party whose 

litigation efforts directly benefit others. Second, a court 
13

may assess attorney's fees as a sanction for the “willful 

disobedience of a court order.” Thus, a court's discretion 

to determine the degree of punishment for contempt permits 

the court to impose as part of the fine attorney's fees 

representing the entire cost of the litigation. Third, . . .

a court may assess attorney's fees when a party has “acted in 

bad faith, vexatiously, wantonly, or for oppressive reasons.”

In this regard, if a court finds that fraud has been 

practiced upon it, or that the very temple of justice has 

been defiled, it may assess attorney's fees against the 

responsible party, as it may when a party shows bad faith by 

delaying or disrupting the litigation or by hampering 

enforcement of a court order. The imposition of sanctions in 

this instance transcends a court's equitable power concerning 

relations between the parties and reaches a court's inherent 

power to police itself, thus serving the dual purpose of 

vindicating judicial authority without resort to the more 

drastic sanctions available for contempt of court and making

the prevailing party whole for expenses caused by his 

opponent's obstinacy.

Even though Defendant’s conduct from the mistrial in November

2014 onward through today evidences habitual obstinate behavior, 

and would support a finding that Defendant should be sanctioned 

for all of Plaintiff’s attorney’s fees and costs from that time,3

the Court finds a fair and reasonable sanction to be that 

 

3 It must be reiterated that Defendant’s conduct compelled the 

Court to hold her in contempt on March 3, 2016 for her continued 

refusal to comply with the Court’s orders. Instead of appearing 

at the contempt hearing, which was the second contempt hearing 

Defendant failed to attend, or the hearing on April 4, 2016 with 

regard to Plaintiff’s motion for default against Defendant, 

Defendant retained counsel in New Jersey, even though she 

repeatedly told the Court she did not have enough money to travel 

to New Jersey and was living month-to-month (see Docket No. 182), 

for the sole purpose of further delaying the proceedings (see 

Docket No. 186, 193, 194). When that delay tactic failed, (see 

Docket No. 195), the attorney moved to withdraw as Defendant’s 

counsel because she terminated his representation (see Docket No. 

196). 
14

Defendant pay Plaintiff for the expenses it outlaid for the 

mediation4 ($2,882.00),5 as well as the attorney’s fees and costs 

it incurred from the time Plaintiff notified the Court in March 

31, 2015 that Defendant refused to participate in Court-ordered 

mediation (Docket No. 146), through April 18, 2016, when Plaintiff 

submitted her proofs regarding default judgment (Docket No. 201) 

after the Court found Defendant to be in default (Docket No. 200)

($10,385.50).6

CONCLUSION

Based on the foregoing, Defendant’s motion to vacate must be 

denied, and Plaintiff’s motion for default judgment must be 

granted. Within 30 days, Plaintiff shall pay $2,882.00 to the 

mediator, and $10,385.50 to Plaintiff’s counsel.

An accompanying Order and Order of Judgment will be entered 

separately.

Date: June 29, 2017 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

 

4 The mediation costs are as of January 21, 2016. The mediator 

continued to communicate with Defendant in an effort to resolve 

the matter for over a year after that time. (See Docket No. 223.)

5 By this Court’s Order (Docket No. 148), Defendant was already 

required to pay half of the total cost of mediation. 

6 Plaintiff’s counsel notes in his certification that Plaintiff was 

charged an hourly fee of $480.00 instead of his usual rate of 

$685.00 per hour.