UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RED ROOF FRANCHISING LLC, :

INC., : Civil Action Nos.

: 10-cv-4065

Plaintiff, : 10-cv-4120

:

v. :

:

AA HOSPITALITY NORTHSHORE, LLC :

et al., :

:

Defendants. :

APPEARANCES:

PETER J. BOYER, ESQUIRE

BENJAMIN A. LEVIN, ESQUIRE

HYLAND LEVIN LLP 

6000 SAGEMORE DRIVE

SUITE 6301

MARLTON, NEW JERSEY 08053-3900

Attorney for Plaintiff,

FRANK C. FUSCO, ESQUIRE

15 PRINCETON STREET

CLIFTON, NEW JERSEY 07014

Attorney for Defendants.

TABLE OF CONTENTS

I. FACTUAL AND PROCEDURAL BACKGROUND...................... 4

A. Factual Background Related to Civil Action 

10-cv-4065 ....................................... 5

B. Factual Background Related to Civil Action 

10-cv-4120 ....................................... 7

II. DISCUSSION ............................................ 8

A. Defendants' Motion for Reconsideration in Civil Action

10-cv-4065 ....................................... 9

B. Plaintiff's Motion For An Order Determining Amount Due

and Entering Final Judgment in Civil Action 

10-cv-4065 ...................................... 18

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1. Damages for Unpaid Franchise Fees .......... 20 

a. Defendants' Claims that Plaintiff's

Accounting of Damages is Incomplete .... 20

b. Defendants' Claims that Plaintiff's

Accounting of Damages is Incorrect ..... 22

I. Defendants' Recorded Payments ..... 23

ii. Hardware Monitoring and 

Maintenance Fees................... 26

iii. Travel Agent and GDS Fees ......... 31

iv. Signature Program Fees ............ 32

v. In-House Management Training Fee .. 35

vi. Miscellaneous Other Expenses ...... 37

c. Accrued Interest on the Unpaid Franchise 

Fees ................................... 37

2. Liquidated Damages .......................... 39

3. Attorneys' Fees ............................. 44

4. Summary ..................................... 45

C. Defendants’ Motion for Reconsideration in Civil Action

10-cv-4021....................................... 46

D. Plaintiff's Motion For An Order Determining Amount Due

and Entering Final Judgment in Docket No. 10-4120

.................................................. 46 

1. Signature Program Fees ..................... 49

2. Defendants' Recorded Payments ............... 50

3. Interest Accrued on Defendants' Unpaid Franchise

Fees ........................................ 52

4. Liquidated Damages .......................... 53

5. Lost Profits ................................ 53

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6. Attorneys' Fees ............................. 54

7. Summary ..................................... 58

III. CONCLUSION ............................................ 59

HILLMAN, District Judge.

In this Memorandum Opinion, the Court addresses several

motions filed in two separate but related civil actions, docketed

at 10-cv-4065 and 10-cv-4021. Currently pending before the Court

are four motions: (1) the Motion for Reconsideration by

Defendants AA Hospitality Northshore, LLC (“AAHN”) and Alpesh and

Aruna Patel in Civil Action 10-cv-4065;(2) Plaintiff Red Roof

Franchising LLC, Inc.’s (“RRF”) Motion For An Order Determining

Amount Due and Entering Final Judgment in Civil Action 10-cv4065; (3) the Motion for Reconsideration by Defendants AAHN and

Asvin and Aruna Patel in Civil Action 10-cv-4021; and (4) RRF’s

Motion For An Order Determining Amount Due and Entering Final

Judgment in Civil Action 10-cv-4021. For the reasons that 1

follow, Defendants’ Motions for Reconsideration in both civil

actions will be denied, and Plaintiff’s Motions For An Order

Determining Amount Due and Entering Final Judgment will be

 In conjunction with their Responses in Opposition to 1

RRF’s Motions Determining Amount Due and Entering Final Judgment

in both civil actions, Defendants move for reconsideration of the

Court’s June 28, 2012 Opinions and Orders awarding summary

judgment in Plaintiff’s favor on the breach of contract claims. 

Although their reconsideration motions are briefed and docketed

within their opposition papers, they are actually separate

motions. Accordingly, the Court treats them as such. 

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granted in part and denied in part in both civil actions.

I. FACTUAL AND PROCEDURAL BACKGROUND 

The full factual background of this case is familiar to all

relevant parties and the Court, and is detailed in the Court’s

prior Opinions. The Court therefore only briefly discusses the

facts and procedural history relevant to the instant motions.

 This matter involves an alleged breach of two separate Red

Roof Inn franchise agreements entered into between RRF and

various members of the Patel family. The first franchise

agreement was entered into between RRF and Asvin and Aruna Patel

related to the operation of a RRF hotel in Bellmawr, New Jersey. 

The legal action stemming from the alleged breach of this

franchise agreement is docketed at 10-cv-4065. The second

franchise agreement was entered into between RRF and Alpesh and

Aruna Patel related to the operation of a RRF hotel in Duluth,

Minnesota. It appears from the record that Asvin Patel is Alpesh

Patel’s father. The legal action related to the alleged breach 2

of the Minnesota franchise agreement is docketed at 10-cv-4021. 

Both cases involve largely similar factual scenarios and the

complaints in both legal actions contain nearly identical claims

and counterclaims. Furthermore, since the filing of the initial 3

 It remains unclear whether Aruna Patel is the same 2

individual in both cases. 

 For purposes of clarity, the Court notes that Defendants’ 3

counterclaims against RRF in Civil Action 10-cv-4065 are based on

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complaints, both legal actions have reflected essentially

mirrored dockets, complete with the filing of virtually identical

motions and briefing, and representation by the same counsel. 

A. Factual Background Related to Civil Action 10-cv-4065

On August 23, 2002, Asvin and Aruna Patel entered into a

written franchise agreement with RRF’s predecessor, Red Roof

Inns, Inc., to operate a hotel in Bellmawr, New Jersey. On March

1, 2005, Red Roof Inns assigned its rights and obligations under

the franchise agreement to Accor Franchising North America, LLC

(“Accor”). On June 20, 2007, Accor assigned its rights and

obligations under the franchise agreement to Plaintiff RRF. 

On June 13, 2006, the Patels assigned their interest in the

franchise agreement to Defendant AAHN through a written transfer

assignment and consent. The Patels also executed a guarantee,

indemnification, and acknowledgment at this time, according to

which they guaranteed the performance of AAHN’s obligations. 

Subsequently, AAHN fell behind in payments it owed to RRF and

defaulted under the terms of the franchise agreement. On January

19, 2010, RRF sent a notice of default to Defendants, indicating

that they were in default and had the opportunity to cure by

March 26, 2010. Defendants failed to do so, and RRF therefore

sent them a notice of termination on April 10, 2010. 

the New Jersey Franchise Practices Act, and its counterclaims in

Civil Action 10-cv-4120 are based on the Minnesota Franchise Act.

in 

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On August 9, 2010, Plaintiff RRF filed a Complaint in this

Court, asserting three counts against Defendants: (1) breach of

contract based on the franchise agreement; (2) breach of contract

based on the guarantee agreement; and (3) specific performance

related to the removal of Red Roof Inn signs and marks and

continued use of its proprietary and confidential information. 

On October 17, 2011, Plaintiff moved for partial summary judgment

on the breach of contract claims, which the Court granted on June

28, 2012. In granting summary judgment on the breach of the

franchise agreement claim, the Court specifically stated as

follows: 

Defendants argue that the calculation of damages does not

take into consideration the payments made by them, and

does not indicate the type of fee. Defendants’ dispute

over the amount of damages, however, does not challenge

the fact that RRF incurred damages as a result of the

breach. Given that RRF has established that it incurred

damages, it is entitled to partial summary judgement on

its claim of breach of the franchise agreement. However,

the Court agrees that plaintiff must provide a full and

complete accounting of damages, including a breakdown by

type of fee charged and history of payments made by

defendants. Accordingly, plaintiff shall file a separate

motion for award of damages in keeping with this Opinion.

On July 27, 2012, Plaintiff RRF filed the present Motion

Determining Amount Due and Entering Final Judgment, in which it

seeks $236,909.88 in damages. Defendants responded in opposition

on August 31, 2012. Subsumed within their Response in

Opposition, Defendants move for reconsideration of the Court’s

entry of summary judgment in Plaintiff’s favor on the breach of

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franchise agreement claim. Plaintiff replied on September 17,

2012, thereby making this matter ripe for judicial consideration. 

B. Factual Background Related to Civil Action 10-cv-4120

Similar to the above-discussed civil action, Alpesh and

Aruna Patel operated a Red Roof Inn in Duluth, Minnesota. In

2007, the Patels assigned their interest in the franchise to

Defendant AAHN. On April 9, 2007, AAHN entered into a written

franchise agreement with Accor for a term of five years. Also on

this day, the Patels executed a guarantee, indemnification and

acknowledgment under which they guaranteed the performance of

AAHN’s obligations under the franchise agreement. On June 30,

2007, Accor assigned its rights and obligations under the

franchise agreement to Plaintiff RRF. Subsequently, on July 1,

2010, AAHN ceased operating the franchise as a Red Roof Inn and

started operating as an “America’s Best Value Inn.” On July 2,

2010, RRF sent written notice to Defendants advising them of

termination of the franchise agreement, effective July 6, 2010,

as a result of default due to abandonment.

On August 11, 2010, RRF filed suit against Defendants,

asserting the same three claims that were filed in Civil Action

10-cv-4065. On October 17, 2011, RRF filed a summary judgment

motion likewise seeking judgment on the two breach of contract

claims. On June 28, 2012, the Court granted summary judgment in

RRF’s favor, but once again noted that the record was unclear

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with respect to the precise amount of damages. The Court

therefore instructed Plaintiff to file a separate motion for an

award of damages, in which it was to provide a “full and complete

accounting of [its] damages.” RRF filed such a motion on July

27, 2012, alleging that it is entitled to a monetary judgment

against Defendants in the amount of $191,444.93. Defendants

responded in opposition on September 2, 2012. Once again, just

as in their opposition papers filed in Civil Action 10-cv-4065,

Defendants have included a reconsideration request of the Court’s

prior Opinion and Order within their response to Plaintiff’s

Motion. RRF filed a reply brief on September 17, 2012, in which

it urges the Court to deny Defendants’ reconsideration motion and

requests additional attorneys’ fees. Accordingly, this matter is

likewise ripe for judicial consideration at this time. 

II. DISCUSSION

Presently before the Court are Plaintiff’s Motions

Determining Amount Due and Entering Final Judgment in both Civil

Actions 10-cv-4065 and 10-cv-4021. Likewise before the Court are

Defendants’ Motions for Reconsideration in both actions. The

Court will first consider the issues presented in Civil Action

10-cv-4065, followed by an analysis of the issues in Civil Action

10-cv-4120. Moreover, because a ruling on Defendants’

reconsideration motions affects the analysis of Plaintiff’s

Motions, the Court considers the merits of Defendants’

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reconsideration requests in both actions first. 

A. Defendants’ Motion for Reconsideration in Civil Action

10-cv-4065

The Federal Rules of Civil Procedure do not expressly

recognize motions for reconsideration. See Harrison v. Smith,

No.Civ.A.08-3050, 2010 WL 715666, at *2 (D.N.J. Feb. 24, 2010)

(citing United States v. Compaction Sys. Corp., 88 F.Supp.2d 339,

345 (D.N.J. 1999)). Such motions are generally treated as

motions to alter or amend the judgment of the court pursuant to

Rule 59(e), or as motions for relief from the court's judgment or

order under Rule 60(b). See Harrison, 2010 WL 715666 at *2. In

the District of New Jersey, motions for reconsideration are

governed by Local Civil Rule 7.1(I). Bowers v. Nat'l Collegiate

Athletics Assoc., 130 F. Supp. 2d 610, 612 (D.N.J. 2001). That

Rule provides as follows:

[A] motion for reconsideration shall be served and filed

within 14 days after the entry of the order or judgment

on the original motion by the Judge[.] A brief setting

forth concisely the matter or controlling decisions which

the party believes the Judge [] has overlooked shall be

filed with the Notice of Motion. 

L. Civ. R. 7.1(I). 

As an initial matter, Defendants’ Motion utterly fails on

procedural grounds, as they blatantly do not adhere to the

requirements set forth by Local Rule 7.1. See United States v.

Pechiney Plastics Packaging, Inc., No. Civ.A.09–5692, 2012 U.S.

Dist. LEXIS 114255, at *11 (D.N.J. Aug. 14, 2012) (noting the

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“stringent standards” provided by Local Rule 7.1). First, Rule

7.1 states that motions seeking reconsideration must be made

within 14 days of entry of the Court’s initial order. The Court

entered its initial Opinion and Order granting summary judgment

in Plaintiff’s favor on June 28, 2012. Defendants, however, did

not file their reconsideration motion until 64 days later on

August 31, 2012. As such, Defendants’ Motion is significantly

untimely. Secondly, in their reconsideration request, 4

Defendants did not specifically set forth “the matter or

controlling decisions” which they believe the Court “overlooked.” 

Indeed, other than cursorily alleging throughout their brief that

reconsideration is necessary under the present circumstances,

Defendants have not provided a single legal citation to support

their argument. Thirdly, rather than filing a separate motion

seeking reconsideration, Defendants commingle their

reconsideration request with their arguments in opposition to

RRF’s Motion Determining Amount Due and Entering Final Judgment,5

 We note that at the summary judgment stage of 4

proceedings, Defendants made much of the fact that Plaintiff

filed an affidavit annexed to its reply papers one day late. In

fact, Defendants went so far as to file a motion to strike the

affidavit partially based on the fact that it was untimely. 

Defendant’s own untimeliness is unexplained. 

 Had Defendants properly filed their Motion for 5

Reconsideration as a submission independent of their Response in

Opposition, they would of course have been required to abide by

the procedures set forth in Local Civil Rules 7.1 and 7.2

detailing motions practice before this Court. 

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thereby placing the Court in the difficult position of attempting

to extrapolate their purported basis for reconsideration and

relief. 

In any event, even if Defendants’ Motion complied with all

the procedural requirements set forth by the Local Rules, it

would nonetheless fail on substantive grounds. A motion for

reconsideration is “a device to relitigate the original issue

decided by the district court, and [is] used to allege legal

error.” Dermo v. Isaacson, No. Civ.A.11-06520, 2012 WL 4207179,

at *1 (E.D. Pa. Sept. 19, 2012) (internal citations and quotation

marks omitted). It is not, however, an opportunity for a

litigant to raise new arguments or present evidence that could

have been raised prior to the initial judgment. See Bapu Corp.

v. Choice Hotels Int’l, Inc., No. Civ.A.07-5938, 2010 U.S. Dist.

LEXIS 135844, at *6 (D.N.J. Dec. 23, 2010)(citing P. Schoenfeld

Asset Mngmt. LLC v. Cendant Corp., 161 F.Supp.2d 349, 352 (D.N.J.

2001)); Kelly v. Hendricks, No.Civ.A.03-2536, 2006 U.S. Dist.

LEXIS 3494, at * 5 (D.N.J. Jan. 27. 2006)(further citations

omitted) (“[R]econsideration is not to be used as a means of

expanding the record to include matters not originally before the

court.”). In order to prevail on a reconsideration motion, the

movant has the burden of demonstrating one of the following:

(1) An intervening change in the controlling law; (2) the

availability of new evidence that was not available when

the court [issued its order]; or (3) the need to correct

a clear error of law or fact or to prevent manifest

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injustice.

Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.

1999)(citing N. River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194,

1218 (3d Cir. 1995)). The standard for reconsideration is high,

and such motions are granted only sparingly. See Dermo, 2012 WL

4207179 at *2; Harrison, 2010 WL 715666 at *2. Thus, a party's

difference of opinion with the court's initial decision should be

dealt with through the normal appellate process. Bowers, 130

F.Supp.2d at 612 (citations omitted); Florham Park Chevron, Inc.

v. Chevron U.S.A., Inc., 680 F.Supp. 159, 162 (D.N.J. 1988); see

also Chicosky v. Presbyterian Med. Ctr., 979 F. Supp. 316, 318

(D.N.J. 1997); NL Indus., Inc. v. Comm. Union Ins. Co., 935 F.

Supp. 513, 516 (D.N.J. 1996) (“Reconsideration motions . . . may

not be used to re-litigate old matters, or to raise arguments or

present evidence that could have been raised prior to the entry

of judgment.”). In other words, “[a] motion for reconsideration

should not provide the parties with an opportunity for a second

bite at the apple.” Tishcio v. Bontex, Inc., 16 F.Supp.2d 511,

532 (D.N.J. 1998) (internal citation omitted).

At the summary judgment stage of proceedings, Defendants

argued that Plaintiff, rather than Defendants, breached the

franchise agreement first by refusing to disclose underlying

invoices to the franchisees, thereby preventing them from making

timely payments. (See e.g., Docket No. 33, Defs.’ Resp. Opp’n to

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Pl.’s Mot. Summ. J. at 3–4. (“[T]here are [] potential ‘black

holes’ of charges and expenses that might or might not have been

charged to the Patels under their franchise agreement that cannot

be identified without explicit invoicing methods. . . . [and]

Courts have not hesitated to deny a summary judgment request when

the movant has failed to provide backup documentation or

explanation to support its breach of contract claim.”).) In

ruling on the summary judgment motion, the Court conducted a

detailed analysis of Defendants’ claim, and found that “the most

that defendants have alleged regarding these complaints is a

dissatisfaction with RR[F]. They have not shown that RRF has

breached the franchise agreement.” (Docket No. 52, 06/28/12 Mem.

Op. at 20.) With respect to Defendants’ specific argument that

the failure to provide underlying invoices constituted a breach,

the Court noted that “[a]lthough not technically a breach of

Section 3 of the franchise agreement, RRF would have a duty to

provide supporting documentation of its invoices. This complaint

appears to now be moot given the declaration of Joy Purvis

attaching the underlying invoices.” (Id. at 20 n.6.) The Court 6

 Although not disputed by either party, nor directly 6

stated by the Court in its initial Opinion, the Court presently

notes that the invoices attached to the Joy Purvis affidavit in

Civil Action 10-cv-4065 relate to the RRF franchise in Duluth,

Minnesota, while the invoices attached to the Purvis affidavit in

Civil Action 10-cv-4021 relate to the RRF franchise in Bellmawr,

New Jersey. It appears that Plaintiff has unintentionally

switched the applicable underlying invoices — the New Jersey

invoices should be filed in Civil Action 10-cv-4065 and the

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went on to find that, even if the complaints did equate to a

breach of the franchise agreement on Plaintiff’s part,

Defendants’ claim nonetheless failed because a non-breaching

party may not stop performance while continuing to take advantage

of a contract’s benefits — an action which the Court found

Defendants did under the facts presented by the record. (See id.

at 21.) 

Defendants now request the Court to reconsider its findings

related to RRF’s potential breach of the franchise agreement. 

More specifically, Defendants argue that: 

RRF’s very belated (during the summary judgment phase of

litigation) production of the underlying invoices

conclusively demonstrate thatDefendants [sic], all along,

were justified in suspecting thatRRFhad [sic] been

invoicing charges that were unpermitted [sic] under the

franchise agreement. . . . RRFcompounded [sic] its

wrongdoing bylaterrefusing [sic] to provide the

supporting documentation for those expenses. . . . Had

RRF properly disclosed the underlying invoices to

Defendants when they were requested years before the

present litigation, Defendants would have known exactly

which charges were legitimate and which ones were

illegitimate, and could have properly issued payment for

the correct amount of franchise fees. 

(Defs.’ Mot./Resp. Opp’n at 1–2.) 

Defendants have not predicated their reconsideration request

on any of the three scenarios set forth by the Third Circuit in

Minnesota invoices should be filed in Civil Action 10-cv-4021.

The Court is able to discern this error and considers the

appropriate invoices in conjunction with the proper docket. The

parties, however, are directed to exercise more caution in the

filing and review of their submissions. 

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Max’s Seafood, but rather appear to rehash the original argument 7

Affording Defendants’ Motion a liberal reading, the only 7

plausible possibility under these circumstances would be the

“availability of new evidence” scenario. This Court has

previously held, however, that, “[a]bsent unusual circumstances,

[the] court should reject new evidence which was not presented

when the court made the contested decision. A party seeking to

introduce new evidence on reconsideration bears the burden of

first demonstrating that evidence was unavailable or unknown at

the time of the original hearing.” Corwin v. Brandywine Valley

Friends of Old Time Music, Inc., et al., No. Civ.A.05-4239, 2008

U.S. Dist. LEXIS 29309, at *4 (D.N.J. Apr. 9, 2008) (Hillman, J.)

(internal citations omitted). 

Here, Defendants claim that RRF failed to provide them with

the itemized invoices during the term of the franchise agreement,

and did not disclose this evidence until after suit was filed. 

Defendants have not shown, however, that this evidence was

unavailable or unknown to them at the time that they submitted

their briefing opposing Plaintiff’s request for summary judgment.

To the contrary, Mr. Patel admits in his own declaration that

this information was disclosed to him during discovery: “As part

of the discovery process . . . RRF has finally provided the

itemized invoices that I have been requesting for years.” (See

Patel Decl. ¶ 10.) Given that this evidence was unveiled during

discovery, Defendants were free to utilize it in their opposition

papers. If Defendants perceived a need for additional evidence

or documents, they were likewise free to request it from RRF

during the discovery process. They may not, however, do so at

this stage of the proceedings. 

Furthermore, Plaintiff has attached to its latest Motion

copies of checks the Patels sent to RRF during the franchise term

referencing specific invoice numbers. (See Pl.’s Mot., Ex. B.) 

These checks indicate that the RRF invoices were previously

available to the Patels, and cut against any argument that such

evidence was previously unavailable or unknown to them. 

Moreover, to the extent Defendants base their motion for

reconsideration upon new evidence submitted by Plaintiff in

connection with its present Motion Determining Amount Due and

Entering Final Judgment, the Court notes that it ordered RRF to

file such a motion and in it provide a full and complete

accounting of its damages. The law is clear that the burden of

proving that reconsideration is necessary falls on the “party

seeking to introduce new evidence on reconsideration.” Corwin,

2008 U.S. Dist. LEXIS 29309 at *4 (emphasis added). Here, RRF is

not the party seeking to introduce new evidence for

reconsideration purposes, but rather has merely provided this

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they made at the summary judgment stage of proceedings — that

Plaintiff, rather than Defendants, breached the franchise

agreement first by refusing to disclose underlying invoices to

the franchisees. The Court already 8

information in conjunction with its present Motion. Accordingly,

any attempt at reconsideration made by Defendants based upon this

allegedly new evidence would be misplaced. 

Finally, even if the Court were to grant Defendants’ request

for reconsideration, their argument would still fail because, as

expressed in the Court’s initial Opinion, any alleged breach by

RRF did not excuse Defendants from performance under the contract

while they continued to benefit from its terms. 

 The Court acknowledges that one could plausibly infer 8

from Defendants’ papers that its argument that RRF breached the

franchise agreement first is presently based on a new allegation:

that RRF breached the agreement by overbilling franchisees

through the use of hidden fees. To the extent that Defendants

attempt to base their reconsideration motion on this new

allegation, this constitutes a new argument and is outside the

scope of a proper motion for reconsideration. See United States

v. Pechiney Plastics Packaging, Inc., No. Civ.A.09–5692, 2012

U.S. Dist. LEXIS 114255, at *11 (D.N.J. Aug. 14, 2012). 

Further, there is nothing in the record which indicates that

Defendants were precluded from raising this argument during the

summary judgment stage of proceedings. To the contrary,

Defendants have attached to their brief a copy of an itemized

invoice from the franchise term depicting an alleged “bogus

billing,” but which also contains a handwritten note on it

stating that the invoice was “OK TO PAY 4-14-9.” (Defs.’

Mot./Resp. Opp’n, Ex. 5, Doc. 48-11.) Such a message presumably

written by a member of Defendants’ staff is inconsistent with its

present argument that it did not receive the itemized invoices

until relatively recently. 

Defendants’ argument is further undermined by information

submitted by RRF in conjunction with its latest Motion for An

Order Determining Amount Due and Entering Final Judgment. RRF

provides its Applied Receipts Register for 2009-2010, which

documents payments made by Defendants during that time period. 

RRF also attaches a declaration from its Treasurer, Mr. Joseph

Merz, attesting to the contents of the Register and swearing

under penalty of perjury that the information contained therein

is true and correct. The Register indicates that Defendants paid

Invoice Nos. 216724 and 221121 in 2009. At present, Defendants

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considered this argument. The law in this District is clear that

“[a] motion for reconsideration is improper when it is used to

ask the Court to rethink what it had already thought through —

rightly or wrongly.” Fishbein Fam. P’ship v. PPG Indus., No

Civ.A.93-653, 1994 U.S. Dist. LEXIS 18812, at *3 (D.N.J. Dec. 28,

1994)(internal quotation marks & citations omitted); Nelson v.

Borgata Hotel Casino & Spa, No. Civ.A.05-5705, 2007 U.S. Dist.

LEXIS, at *2 (D.N.J. Oct. 23, 2007) (Simandle, J.)

(“Reconsideration is not warranted when the moving party simply

recapitulates the cases and arguments considered by the court

prior to rendering its initial decision.”)(internal citation

omitted). Defendants cannot merely recycle their original

argument in the guise of a motion for reconsideration.

attach these two invoices to their brief as examples of invoices

depicting “bogus billings” or invoices not previously received. 

However, the fact that the Register indicates that these two

invoices were received and paid by Defendants in 2009 seriously

calls into question Defendants’ argument. 

Accordingly, the record in this case indicates that

Defendants’ present argument that RRF breached the contract first

by over-billing its franchisees is a new argument that could have

been — but was not — raised at the summary judgment stage of

proceedings. It is well established in this District that

“[m]otions for reconsideration are not an opportunity to argue

what could have been, but was not, argued in the original set of

moving and responsive papers.” Fellenz v. Lombard Inv. Corp.,

400 F.Supp.2d 681, 683 (D.N.J. 2005); see also Corwin, 2008 U.S.

Dist. LEXIS 29309 at *4 (Hillman, J.); Jeffreys v. New Jersey,

No. Civ.A.07-3940, 2008 U.S. Dist. LEXIS 15915, at *5 (D.N.J.

March 3, 2008) (Bumb, J.); Perry v. Miner, No. Civ.A.05-4780,

2006 U.S. Dist. LEXIS 60572, at *5 (D.N.J. Aug. 10, 2006)

(Kugler, J.). Accordingly, the Court declines to reconsider its

initial ruling in light of Defendants’ new argument. 

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Accordingly, the Court declines to reconsider its prior findings

related to RRF’s alleged prior breach of the franchise

agreement. 

9

B. Plaintiff’s Motion For An Order Determining Amount Due

and Entering Final Judgment in Civil Action 10-cv-4065

On June 28, 2012, the Court entered an Order awarding

summary judgment in Plaintiff’s favor on its breach of contract

claims and dismissing Defendants’ counterclaims. In granting

summary judgment, the Court indicated that RRF was entitled to

recover monetary damages, but noted that the evidentiary record

was unclear as to the precise damages amount. The Court

therefore instructed RRF to file a motion for an award of damages

and attorneys’ fees no later than July 27, 2012, in which it was

to “provide a full and complete accounting of damages, including

a breakdown by type of fee charged and history of payments made

by defendants.” RRF filed the instant Motion before the Court on

this date, to which Defendants responded in opposition on August

 Moreover, even if the Court were to reconsider its prior 9

findings and hold that the failure to disclose the underlying

invoices constituted a breach, such a finding still would not

change the fact that Defendants continued to take advantage of

the contract’s benefits after RRF’s purported breach. As the

Court made clear in its initial Opinion, even if RRF had breached

the contract first, the law unequivocally provides that the nonbreaching party may not stop performance of the contract while

continuing to take advantage of its benefits. See Ramada

Worldwide, Inc. v. Hotel of Graylong, Inc., No. Civ.A.08-3845,

2010 WL 2674460, at *9 (D.N.J. June 30, 2010) (internal citations

omitted). As such, Defendants’ claim would fail regardless of

whether or not the Court reconsiders its findings regarding the

alleged failure to disclose the underlying invoices. 

18

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31, 2012. RRF filed a reply on September 17, 2012, in which it

asserted that it has incurred additional counsel fees in

responding to Defendants’ opposition papers. Accordingly, RRF

presently submits to the Court that it is entitled to: 

(1) $58,697.00 in unpaid franchise fees, costs, royalities,

and accrued interest, 

(2) $112,109.87 in liquidated damages and accrued interest,

and 

(3) $66,103.01 in attorneys’ fees, 

for a total damages award of $ 236,909.88. 

Defendants respond that RRF failed to abide by the Court’s

June 2012 Order because its account of damages is neither

complete nor correct. More specifically, Defendants contend that

RRF only submitted invoices from 2009 onward, despite the fact

that the franchise term began in September of 2007. Defendants

argue that this intentional withholding of pre-2009 invoices

demonstrates Plaintiff’s intent to overcharge them. Defendants

further allege that RRF has not established the legitimacy of

many of its claimed damages, and that its submitted account of

damages is intentionally disorganized so as to mask its true

intent to overcharge them. Moreover, Defendants assert that

RRF’s calculation of its unpaid franchise fees is incorrect

because it did not properly record payments made by them and

improperly billed them for certain fees. Finally, Defendants

contend that Plaintiff’s calculation of liquidated damages is

incorrect because late fees and interest accrual do not apply to

19

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the total damages amount. 

1. Damages for Unpaid Franchise Fees

a. Defendants’ Claims that Plaintiff’s

Accounting of Damages is Incomplete

Defendants first argue that RRF’s accounting of damages is

incomplete because RRF has only provided invoices from 2009

onward, despite knowing that Defendants believed they were

improperly charged throughout the entirety of the franchise term,

which began in September of 2007. Plaintiff responds that it did

not submit these invoices because they are irrelevant to its

calculation of damages. 

As indicated by the evidentiary record, RRF has alleged that

AAHN was in arrears on payments of franchise fees as of December

15, 2009. RRF therefore sent notices of default and termination

to Defendants in late 2009 and early 2010. When Defendants

failed to cure the default, RRF terminated the franchise

agreement on April 20, 2010. Thus, any such damages that RRF

incurred in this respect occurred in 2009 and 2010. Therefore,

the Court agrees with Plaintiff that the submission of pre-2009

invoices is unnecessary under these circumstances.10

 In conjunction with their argument that Plaintiff’s 10

submitted damages account is incomplete because it did not submit

pre-2009 invoices, Defendants likewise argue that RRF’s

intentional withholding of these invoices is evidence of its true

intent to overcharge them. As indicated above in Footnote 9,

Defendants’ claim that RRF intentionally over-billed them is an

argument which could have been — but was not — raised at the

summary judgment stage of proceedings. Accordingly, the Court

20

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Defendants also assert that RRF failed to abide by the

Court’s previous Order because it did not provide a breakdown by

type of fee charged. More specifically, Defendants contend that

RRF’s submission intentionally lacks organization and clarity in

order to make it more difficult to identify duplicate charges and

hidden fees. In its June 2012 Order, the Court did not indicate

that Plaintiff was required to utilize any particular method of

organization, but rather left it to RRF’s discretion to “provide

a full and complete accounting of [its] damages, including a

breakdown by type of fee charged and history of payments made[.]” 

At present, Plaintiff has submitted several documents in support

of its sought damages award. In Exhibit A, Plaintiff has

provided a copy of its Applied Receipts Register reflecting

payments made by Defendants to RRF between August 2008 and

September 2010. These payments are grouped by date, and listed

in chronological order. Exhibit B contains copies of payments

Defendants made to RRF by check and credit card. These payments

reference specific invoice numbers from Exhibit A, and appear

largely in chronological order. Exhibit C is an Account Status

Report which provides a chronological account of all of

Defendants’ unpaid invoices. Exhibit D includes copies of every

invoice RRF sent to Defendants between 2009 and 2010, including

the paid and unpaid invoices referenced in Exhibits A and C. 

declines to further opine on this argument with respect to

Plaintiff’s submitted damages amount. 

21

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Each submitted invoice contains a line description of the type of

fee charged. Defendants admit that the invoices provided in

Exhibit D are not in chronological order, but submit that this

was done because of bill number sequencing and that the status of

an invoice as “paid” or “unpaid” in Exhibit D can be easily

ascertained by cross-referencing it with the invoices provided in

Exhibits A and C. 

The Court sees no discernible error in Plaintiff’s method of

organization with respect to its submitted documentation to

support its damages claim. While Defendants may have chosen an

alternative method of organization that was, in their view,

better structured, Plaintiff’s chosen method does not equate to a

violation of the Court’s previous Order. As such, the Court

declines to give merit to Defendants’ assertions that Plaintiff’s

submitted damages amount is incomplete based on its method of

organization. 

11

b. Defendants’ Claims that Plaintiff’s

Accounting of Damages is Incorrect

In addition to their claims that Plaintiff’s submitted

amount of damages is incomplete, Defendants also allege that

RRF’s calculation of the unpaid franchise fees is incorrect. 

 Defendants also argue that RRF’s submitted damages amount 11

is incomplete because it fails to establish the legitimacy of

several of its claimed damages. The Court considers this

argument below in conjunction with Defendants’ claims that RRF’s

damages calculation is incorrect because they were improperly

charged for several illegitimate fees. 

22

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Specifically, Defendants maintain that RRF did not properly

record certain payments made by them and impermissibly billed

them for miscellaneous fees not permitted under the franchise

agreement.

i. Defendants’ Recorded Payments

Defendants contend that RRF wrongfully failed to account for

over $15,000 of credit card payments made by Asvin Patel in

December of 2009 in their damages account. In support of this

contention, Defendants attach a copy of Asvin’s credit card

statement depicting a $5,010.20 payment on December 8, 2009. 

(See Defs.’ Resp. Opp’n, Ex. 56-9.) As reflected by Plaintiff’s

Applied Receipts Register, however, RRF recorded this credit card

payment and applied it to Defendants’ account on December 13,

2009. Accordingly, this amount will not be deducted from

Plaintiff’s sought damages. 

Defendants likewise contend that RRF did not account for a

$10,336.19 credit card payment made by Asvin on December 8, 2009. 

This payment, however, was made in relation to the related RRF

franchise in Duluth, Minnesota. As such, consideration of this

credit card payment is unrelated to the instant case, and the

Court will consider it, if need be, in its analysis of

Plaintiff’s sought damages award in related Civil Action 10-cv4120. 

Defendants further assert that RRF wrongfully failed to

23

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record a $4,358.03 check payment made by Asvin on March 25, 2010. 

RRF’s treasurer, Mr. Joseph Merz, submits in his declaration that

he has conducted an extensive search of RRF’s deposit ledgers and

has found no evidence indicating that RRF ever received such a

check payment. (See Pl.’s Reply, Ex. 59-4, Supp. Decl. of Joseph

Merz.) 

However, contrary to Plaintiff’s assertions that it has no

record of such a check deposit, the Court through its own review

of the record has found that Plaintiff itself provided a copy of

this check — Check No. 07311 — in its own Exhibit B. (See Doc.

54-3, at page 30 of 33.) RRF’s own documentation indicates that

the check was deposited into its account on May 3, 2010. Exhibit

B further indicates that Check No. 07311 was to be applied to

invoice numbers 237843, 18118, 82238, 232143, 228544, and 26426. 

(See id., at page 33 of 33.) Defendants have likewise submitted

a copy of this check attached to Asvin’s bank statement, which

indicates that it was deposited on May 3, 2010 and his checking

account was debited $4,358.03 on this date. (See Defs.’ Resp.

Opp’n, Ex. 56-9.) RRF’s Applied Receipts Register in Exhibit A,

however, does not reflect a $4,358.03 payment made by Defendants,

nor does it reference any of the above listed invoice numbers to

which Check No. 007311 was to apply. To the contrary, all of the

above listed invoice numbers are listed as unpaid in Plaintiff’s

Account Status Report in Exhibit C. Accordingly, this amount was

24

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incorrectly included in Plaintiff’s submitted damages amount, and

$4,943.80 will be deducted from Plaintiff’s calculated damages.12

Moreover, although not an issue raised by either party, the

Court notes that, in addition to Check No. 007311, Plaintiff has

likewise provided in its Exhibit B a copy of Check No. 007312

paid by Defendants in the amount of $126.20. (See Doc. 54-3, at

page 31 of 33.) Plaintiff’s own submission indicates that this

check was cashed on May 3, 2010, and was to be applied toward

invoice numbers 17502 and 17587. (See id., at page 33 of 33.) 

Plaintiff’s Applied Receipts Register in Exhibit A reflects that

Defendants paid invoice number 17502 in the amount of $36.14. 

The Register does not, however, indicate that invoice number

17587 has been accounted for. To the contrary, Plaintiff’s

Account Status Report in Exhibit C reflects invoice number 17587

 The Court deducts $4,943.80 — rather than the $4,358.03 12

amount indicated in Defendants’ check payment — because the check

amount reflected credits owed to Defendants at the time of

payment, while Plaintiff’s submitted damages include the full

amount due on the invoices without taking the credits into

account. To be clear, the total amount due to RRF in February

2010 was $4,943.80. [$155.05 (invoice 237843) + $225.12 (invoice

18118) + $4,043.12 (invoice 82238) + $230.00 (invoice 232143) +

$69.00 (invoice 228544) + $221.51 (invoice 26426) = $4,943.80.]

At this time, Defendants were entitled to two credits on their

total payment equaling $585.77. [$406.57 (credit 236108) +

$179.20 (credit 26517) = $585.77.] Therefore, the actual amount

Defendants owed Plaintiff was $4,358.03. [$4,943.80 – $585.77 =

$4,358.03.] Defendants thus sent Plaintiff Check No. 007311 to

rectify payment owed on invoice numbers 237843, 18118, 82238,

232143, 228544, and 26426. In their proposed damages, however,

Plaintiff submits the full $4,943.80 as outstanding payments owed

to it. Therefore,$4,943.80 will be deducted from RRF’s damages

amount. 

25

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as outstanding in the amount of $137.85. Accordingly, an

additional $137.85 will be deducted from Plaintiff’s submitted

damages amount.13

In sum, the Court declines to reduce Plaintiff’s sought

damages award with respect to approximately $15,000 in credit

card payments made by Asvin Patel. Plaintiff’s damages award

will, however, be reduced by $5,081.65 to account for its failure

to properly record check payments previously made by Defendants.

ii. Hardware Monitoring and Maintenance Fees

Defendants argue that the monthly “hardware monitoring and

maintenance fee” (hereinafter “hardware fee”) that RRF charged

the Patels during the franchise term should not be included in

the unpaid franchise fees portion of its damages amount.

Defendants contend that they do not know what hardware on their

 Similar to the above analysis in Footnote 12, the Court 13

deducts the full amount of damages claimed by Plaintiff, rather

than the lesser amount provided by Defendants’ check payment. 

The total amount owed to RRF by Defendants was $173.99. 

[$36.14 (invoice 17502) + $137.85 (invoice 17587) = $173.99]. 

Defendants, however, apparently had four outstanding credits

totaling $47.79 at this time. [$6.31 (credit 17743) + $14.23

(credit 17800) + $20.54 (credit 17860) + $6.71 (credit 17919) =

$47.79]. Thus, taking the credits into account, the actual

amount owed to RRF was only $126.20. [$173.99 – $47.79 =

$126.20.] The record indicates that Defendants paid RRF $126.20

by Check No. 007312. This payment rectified the amount due on

invoice numbers 17502 and 17587. Plaintiff is therefore

precluded from including invoice 17587 in its submitted damages

amount at present. Plaintiff’s Account Status Report in Exhibit

C, however, lists invoice 17587 as unpaid in the amount of

$137.85. Accordingly, this amount will be deducted from

Plaintiff’s proposed damages amount. 

26

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property was allegedly maintained or monitored by RRF, that they

never agreed to such a fee, and that this fee was not authorized

under the franchise agreement. Defendants further argue that, 14

to the extent this monthly hardware fee constituted a “support

and maintenance fee” per their software agreement with RRF, such

a fee was capped at $1,000 annually. In response, Plaintiff 15

argues that the hardware fee was permitted under the broadly

written terms of Section 5 of the franchise agreement, and that

the $1,000 cap only applies to software — not hardware — covered

by the agreement. 

In contract disputes, the damages suffered by a party are

typically remedied by awarding that party the amount of money

that would place it in the position it would have enjoyed had the

contract not been breached. See Vino 100, LLC v. Smoke on the

Water, LLC, 864 F. Supp. 2d 269, 285 (E.D. Pa. 2012) (citing

Atacs Corp. v. Trans World Commc'ns., 155 F.3d 659, 669 (3d Cir.

1998)). As applied to this case, this means that the Court must

first ascertain whether the hardware fee was required under the

franchise agreement in order to determine whether Defendants’

 Defendants once again argue that RRF breached the 14

franchise agreement because the charging of such a fee was not

authorized under the terms of the agreement. As explained above,

the Court has already considered and decided this issue. Thus,

it declines to do so again at this juncture. 

 The software license agreement between RRF and the Patels 15

is attached to, and therefore included within, their franchise

agreement. 

27

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failure to pay the fee can be included in Plaintiff’s damages. 

In other words, RRF did not suffer any damages when the Patels

did not pay the hardware fee unless it was a cost Defendants were

required to incur under the franchise agreement in the first

place. 

The starting point in such an inquiry is the language of the

contract itself. If the language of the contract is unambiguous,

the court must “construe the contract from its four corners as a

matter of law without resort to extrinsic evidence,” and should

“enforce the contract as written and not [] make a better

contract for either of the parties.” Glenpointe Assocs. v.

Regency Sav. Bank, No. Civ.A.06-1690, 2006 U.S. Dist. LEXIS

74496, at *10–11 (D.N.J. Sept. 25, 2006) (citing Regency

Oldsmobile, Inc. v. Gen. Motors Corp., No. Civ.A.87-314, 1988

U.S. Dist. LEXIS 3505, at *10-*11 (D.N.J. Apr. 19, 1988); Kampf

v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960)(internal

quotation marks & parantheticals omitted)). Here, Section 4 of

the franchise agreement outlines the fee responsibilities of the

parties. Notably, a monthly hardware fee is not mentioned in

this Section. However, Section 5 of the agreement addressing the

duties of the franchisee states that: 

Franchisee shall . . . maintain at the property, at its

sole cost, all Software, Computer Systems, and equipment

necessary to operate and maintain the Computer System

and/or data processing systems . . . The foregoing

obligation shall include any enhancements, additions,

substitutions or other modifications to such Software and

28

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Computer System and equipment that may be required from

time to time. Franchisee shall be responsible for all

costs incurred in fulfilling its obligations hereunder[.]

(Franchise Agreement § 5.18.) The franchise agreement goes on to

define “Software” and “Computer Systems.” “Software” is defined

as:

[T]he Fidelio Property Management System Software

provided or specified by Franchisor for use in the

System, including but not limited to, Franchisor’s

proprietary property management software (including the

accompanying documentation and all future enhancements,

upgrades, additions, substitutions and other

modifications) developed for the non-exclusive use by Red

Roof Inns.

(Id., Schedule 1 to Red Roof Inns Franchise Agreement,

“Definitions.”) The “Computer System,” on the other hand, is

defined as:

[A]ll hardware, Software, and peripheral equipment that

the Franchisor sells to the Franchisee for the Fidelio

Property Management System which will run the Software.

(Id.) (emphasis added). Thus, it is unambiguous from the

contractual language itself that hardware is considered to be

part of the Computer System. It is also clear that Subsection

5.18 of the agreement explicitly requires franchisees to

“maintain” at their properties “all Computer Systems and

equipment” at their “sole cost.” A monthly hardware fee needed

to maintain the Computer System falls within the scope of this

contractual language. Accordingly, the hardware fee was

29

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permitted under the franchise agreement, and Defendants’ failure

to pay it contributed to Plaintiff’s overall incurred damages. 

16

The next inquiry for the Court to consider is whether the

hardware fee is subject to the $1,000 cap found in Defendants’

software agreement with RRF, which is incorporated within the

parties’ franchise agreement. Section 2 of the software

agreement governs “software license, support and maintenance

fees” and caps such fees at $1,000 annually. (Franchise

Agreement, Ex. B, Fidelio Software License Agreement § 2.2; Ex. A

to Fidelio Software License Agreement.) By its own terms, the

“software license, support and maintenance fee” applies to

software, which, as explained above, has its own definition under

the contract and does not encompass hardware. Accordingly, the

$1,000 cap in the software agreement does not apply to fees

associated with maintenance of hardware encompassed within the

definition of RRF’s Computer System, and Plaintiff’s damages will

therefore not be limited in this manner.17

 Moreover, the record indicates that Defendants actually 16

paid the hardware fee at various points throughout the franchise

term. (See Pl.’s Mot, Ex. A, Invoice Nos. 212033, 213143,

219839, 218374, 221486, 222119, 223178.) As such, it is curious

that they previously chose to pay the fee and did not object to

it at the time they received these invoices, but instead waited

to contest it at this late stage of litigation. 

 In this section of their brief, Defendants also argue 17

that they were wrongfully billed three times for a hardware fee

in December 2009. The record indicates that RRF did in fact send

Defendants three invoices — Invoice Nos. 226755, 226756, 226757 —

in the amount of $230.00 each for the month of December 2009. 

(See Pl.’s Mot, Ex. D.) However, RRF’s Account Status Report —

30

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iii. Travel Agent and GDS Fees

Defendants likewise contend that “travel agent and GDS

fees” that RRF charged the Patels throughout the franchise term 18

should not be included in the unpaid franchise fees portion of

its damages amount. Defendants contest inclusion of these fees

on the grounds that they had an “understanding” with RRF’s

predecessor that they were not responsible for their payment. 

First, Defendants have introduced no evidence to support

their purported “understanding” with RRF’s predecessor. Even if

such an understanding existed, however, it is irrelevant to the

instant matter because the breached franchise agreement at issue

here is not an agreement between Defendants and RRF’s

predecessor. Rather, it is the binding agreement between

Defendants and RRF. As such, any prior “understanding” with

RRF’s predecessor is inapplicable here. 

Secondly, Subsection 4.5 of the parties’ franchise agreement

clearly states that: 

Franchisee must reimburse Franchisor for the amounts of

any travel agency commissions, airline reservation system

fees, fees associated with the use of other electronic

which lists the invoices that remain unpaid by Defendants — only

lists Invoice Number 226755 as an outstanding invoice awaiting

payment. (See id., Ex. C.) As such, given that Plaintiff has

not included the other two invoices as outstanding, Defendants’

argument on these grounds is essentially moot. 

 GDS fees are “global distribution system” commissions 18

paid to third-party service providers of online travel

reservations. 

31

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booking systems by guests and other related fees that we

pay to third parties on Franchisee’s behalf in connection

with reservations for rooms at your Inn.

(Franchise Agreement § 4.5.) This contractual language is clear

that Defendants were responsible for payment of travel agent and

GDS fees, and that their failure to do so financially injured

RRF. Accordingly, Plaintiff is entitled to include the unpaid

travel agent and GDS fees in its damages amount. 

iv. Signature Program Fees 

Defendants also assert that the “Signature Program fees”

that RRF charged the Patels should not be included in the unpaid

franchise fees portion of its damages amount. More specifically,

Defendants maintain that these fees were not authorized under the

franchise agreement. 

19

According to Plaintiff, the Signature Program is a customer

service program in which “mystery shoppers” called RRF franchises

to test customer service levels. Plaintiff avers that the fees

related to the Signature Program were permitted under Subsection

5.17 of the agreement, which provides that: 

Franchisee shall participate in and comply with the terms

of all marketing, reservation service, advertising and

operating programs and policies required by Franchisor

for the System (including, without limitation, any

 On this point, Defendants once again argue that they had 19

an “understanding” with RRF’s predecessor that they would not be

charged for such fees. For the same reasons discussed above with

respect to travel agent and GDS fees, any such understanding is

inapplicable to the instant dispute.

32

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Internet advertising and marketing conducted and

prescribed by Franchisor), the manner directed by

Franchisor in the Manuals or otherwise in writing. . . .

Franchisee shall participate in and comply with such

programs and activities on the same basis as other

participating Red Roof Inns in the same region as the

Inn. 

(Id. § 5.17.) Subsection 5.17, however, only requires that the

franchisee “participate in and comply with” — as opposed to pay

for — such programs. (Id.) Thus, it is apparent from the

contract’s language itself that Defendants were not required to

pay such fees. On this point, Plaintiff argues that the

Signature Program is a type of “training program” covered by

Subsection 5.3 of the contract, which provides that: 

In addition to its initial Manager training program and

Owner’s Orientation program, Franchisor may require

Franchisee and its employees to attend other training

courses, programs, conferences and seminars. All training

shall be provided at such locations as Franchisor may

designate. Franchisee shall be responsible for all

expenses incurred by its trainees including tuition costs

(if any) and the costs of transportation, meals, lodging

and wages or salary and benefits. 

(Id. §§ 5.3.2, 5.3.3.) 

Even if the Signature Program could be considered a

“training program,” it is not evident from the contract that it

is the type of program that Defendants were required to pay for

under the agreement. There is no indication in the record that

Defendants’ employees had to “attend [any] training courses,

programs, conferences and seminars” for the Signature Program. 

33

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Nor is there any evidence that such training programs actually

took place at any location designated by RRF. Finally, Plaintiff

has not introduced any evidence to show that the “Signature

Program fee” covered any employee tuition costs, transportation,

meals, lodging, or wages. In fact, Defendants vehemently deny

that their employees ever participated in such a training

program. 

Therefore, given that Defendants were not required to pay

the Signature Program fees under the franchise agreement, it

follows that such fees should not be included in Plaintiff’s

allotted damages amount. The outstanding Signature Program fees

that Plaintiff claims are owed to it by Defendants will therefore

be deducted from its overall proposed damages amount. In

Plaintiff’s Account Status Report depicting Defendants’

outstanding payments, RRF lists the following seven invoices that

include charges for Signature Program fees in the following

amounts:

Invoice Number Amount

228540 $72.00

228541 $72.00

228542 $72.00

228543 $69.00

228544 $69.00

236180 $69.00

236191 $46.00

34

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Total $469.00

(Pl.’s Mot., Ex. C, Account Status Report.) Accordingly,

Plaintiff’s overall damages amount will be reduced by $469.00. 

v. In-House Management Training Fee

Defendants further claim that the fee RRF charged for an

“in-house management training” program should be subtracted from

Plaintiff’s submitted damages amount on the grounds that the fee

is “completely bogus” since this program never took place. 

Plaintiff, in turn, asserts that it has not included this fee in

its damages because it references a 2008 charge, and its damages

accrued between 2009 and 2010. Plaintiff further avers that it

would be prejudiced if Defendants were permitted to proceed with

this claim because they paid the fee in 2008 without protest and

RRF therefore had no reason to retain proof of performance of the

training program in 2012, and that any such claim now would be

time-barred by Subsection 22.5 of the franchise agreement. 

20

 Subsection 22.5 of the franchise agreement provides as 20

follows:

Franchisor and Franchisee and its Owners irrevocably

waive trial by jury in any action, proceeding or

counterclaim, whether at law or in equity, brought by

either of them against the other. Any and all claims and

actions arising out of or relating to this Agreement, the

relationship of Franchisee and Franchisor, or

Franchisee’s operation of the Inn, brought by either

party hereto against the other, whether in mediation or

a legal action, shall be commenced within two (2) years

from the occurrence of the facts giving rise to such

claim or action, or such claim or action shall be barred. 

35

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Defendants’ argument on this point falls short of the mark. 

As correctly noted by Plaintiff, the instant Motion before the

Court refers to an assessment of damages incurred by RRF as a

result of the breach of the franchise agreement. As mentioned

above, Defendants defaulted on and terminated the agreement in

2010. As such, RRF’s damages arose at the time of default and

termination. In its Exhibit C, Plaintiff submits a list of fees

it charged Defendants between 2009 and 2010 that remain unpaid. 

Notably, RRF does not include any pre-2009 invoices because they

are not within the relevant time frame. The disputed in-house

management training fee was charged in 2008. The charging of

this fee is irrelevant here because: (1) the fee was not incurred

during the relevant time period; and (2) the record indicates

that Defendants in fact paid this fee. The fee has not been

included in Plaintiff’s proposed damages, and Defendants’

disagreement with this charge is impertinent to the instant

discussion determining Plaintiff’s damages. Defendants have

instead stepped outside the boundaries of the instant Motion and

raise a completely new argument — that the in-house management

training fee is illegitimate and they should never have been

charged for it in the first place. This issue is not before the

Court for resolution. Accordingly, Plaintiff’s damages will 21

(Franchise Agreement § 22.5.)

 Given that resolution of this dispute surrounding the in- 21

house management training program is inappropriate here, the

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not be reduced on these grounds. 

vi. Miscellaneous Other Expenses 

Finally, Defendants assert that RRF’s damages should be offset by numerous expenses Defendants incurred as a result of RRF’s

“incompetence with running a hotel franchise system.” (Defs.’

Resp. Opp’n at 9.) In particular, Defendants contend that they

began to incur additional monthly charges related to the

communications and property management systems at the hotel when

RRF purchased the franchise from Accor.22

Once again, Plaintiff has not included these allegedly

unpaid fees in its submitted damages amount. Thus, disputes

related to these fees and RRF’s alleged “incompetence” are

irrelevant to resolution of the instant matter, and Plaintiff’s

damages will not be reduced on this basis. 

c. Accrued Interest on the Unpaid Franchise Fees

Subsection 4.7 of the franchise agreement provides that, in

the instance of an overdue payment, the franchisee shall pay the

franchisor “in addition to the amount overdue, a fifty dollar

($50) Late Fee plus interest on such overdue amount from the day

Court does not consider either parties’ arguments related to the

propriety of this fee or actual occurrence of such a program, nor

does it take any position on whether or not such a claim is timebarred by the franchise agreement. 

 More specifically, Defendants object to charges incurred 22

at the hotel from “Qwest” and “Shift4.” (See Defs.’ Resp. Opp’n,

Ex. A, Decl. of Asvin Patel (“Patel Decl.”) ¶ 20.) 

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it was due until paid at the rate of one and one half percent

(1.5%) per month or the maximum rate permitted by law, whichever

is less.” (Franchise Agreement § 4.7.) In its Exhibit E,

Plaintiff has submitted a chart of the monthly interest payments

accrued on Defendants’ outstanding obligations to it through July

of 2012. It asserts that it is entitled to $21,310.52 in 23

accrued interest on the outstanding fees and costs owed to it by

Defendants under the franchise agreement. 

Defendants do not dispute Plaintiff’s submitted accrued

interest amount. Nonetheless, Plaintiff’s proposed accrued

interest calculation must be amended to reflect the Court’s

instant findings with respect to the unpaid franchise fees and

costs, as well as to account for interest accrued as of the date

of this Opinion and adjoining Order. More specifically,

Plaintiff’s interest calculation must be applied to the new

damages amount, which should take into account the Court’s

deduction of $5,550.65. [$5,081.65 (fees actually paid by

Defendants) + $469.00 (Signature Program fees) = $5,550.65.], and

should include interest accrued as of the date of this Opinion

and Order. Accordingly, the Court directs Plaintiff to file a

new certification pertaining to its proposed damages calculation

that reflects these findings and alterations. 

 July 2012 is the month that the parties submitted their 23

briefing on this matter to the Court. 

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2. Liquidated Damages

Plaintiff asserts that it is entitled to $75,000.00 in

liquidated damages from Defendants, plus $37,109.87 in interest

accrued thereon at a monthly rate of 1.5%, for a total liquidated

damages award of $112,109.87. Defendants object to Plaintiff’s

liquidated damages calculation on the grounds that the liquidated

damages provision of the franchise agreement was previously

modified by the parties to place a cap on monetary exposure in

the event of early termination. Moreover, Defendants claim that

Plaintiff relies on the wrong provision of the contract as the

basis for its alleged right to these fees and interest, and that

the correct contractual provision does not permit RRF to recover

late fees or accrued interest on liquidated damages. 

Subsection 13.6 of the franchise agreement governs

liquidated damages, and provides that: “If the Agreement is

terminated after the first twelve (12) months of operation,

Franchisee agrees to pay Franchisor liquidated damages . . .

Franchisee shall pay Franchisor the payment specified in this

Section 13.6 no later than give (5) days following the

termination of this Agreement.” (Franchise Agreement § 13.6.) 

On August 23, 2002, the franchise agreement was amended by the

parties. With respect to the liquidated damages provision in

Subsection 13.6 of the original agreement, the addendum altered

that Section as follows:

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Notwithstanding the provisions in Paragraph 13.6 hereof,

Franchisee shall pay Franchisor a lump sum payment . . .

equal to the lesser of (1) the average monthly payments

required under Section 4 of the Agreement . . . or (2) a

fixed sum of seventy-five thousand dollars ($75,000.00);

provided, however, that all other provisions of Section

13 relative to procedures for termination shall remain in

full force and effect.

(Franchise Agreement, 09/23/02 Addendum, ¶ 4.) 

“‘[W]here the terms of a contract are clear and

unambiguous[,] there is no room for interpretation or

construction and the courts must enforce those terms as

written.’” Nye v. Ingersoll Rand Co., 783 F.Supp.2d 751, 761

(D.N.J. 2011) (citing City of Orange Twp. v. Empire Mortg.

Servs., Inc., 341 N.J. Super. 216, 224 (App. Div. 2001)). Here,

the language in the franchise agreement and 2002 addendum clearly

indicate that, in the event that a franchisee prematurely

terminated its agreement, the franchisor would be entitled to

liquidated damages. The agreement and subsequent addendum also

make clear that the amount of liquidated damages in such

instances would be the lesser of either $75,000.00 or the average

monthly payments made by the franchisee to the franchisor. 

Neither party disputes that the $75,000.00 lump sum is the lesser

of these two options. Therefore, given the Court’s prior

findings at summary judgment that Defendants breached the

franchise agreement and the unambiguous contractual language at

issue here, the Court finds that Plaintiffs are permitted to

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include the $75,000.00 liquidated damages lump sum in their

proposed damages amount. 

Plaintiff also claims that it is entitled to $37,109.87 in

interest that has accrued on the liquidated damages under the

terms of the franchise agreement. RRF roots this claim in

Subsection 4.7 of the agreement. In response, Defendants object

on the grounds that Subsection 4.7 is only applicable to

franchise and marketing fees, and does not apply to liquidated

damages. 

Subsection 4.7 provides that:

If any payment due to Franchisor or its Affiliates by

Franchisee is not received before its due date . . .

Franchisee shall pay to Franchisor, in addition to the

amount overdue, a fifty dollar ($50) Late Fee plus

interest on such overdue amount from the day it was due

until paid at the rate of one and one half percent (1.5%)

per month[.]

(Franchise Agreement § 4.7.) Subsection 4.7 is nested under

Section 4 of the contract governing “Fees.” Section 4 contains

eight subsections, each detailing monthly fee requirements of the

parties. The first five subsections list specific fees owed by

the parties, including an initial franchise fee (Subsection 4.1),

royalty fees (Subsection 4.2), marketing and reservation fees

(Subsection 4.3), and booking and commission fees (Subsection

4.5). The final three subsections of Section 4 appear to explain

the manner in which the fees listed in the previous five

subsections would apply under the terms of the franchise

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agreement, including designation of the office where fee payments

should be sent and the bank account where they would be

deposited. The second to last subsection — Subsection 4.7 —

states that the franchisor is entitled to late fees and accrued

interest for “any monthly payment not actually received [ ] on or

before the twentieth (20) day of the month[.]” (Id.)

When interpreting a provision of a contract, courts should

begin by examining the text of the disputed provision in the

context of the overall document. Spring Ford Indus. v. Nike Team

Sports, Inc., No. Civ.A.05-3788, 2006 U.S. Dist. LEXIS 11784, at

*8-9 (E.D. Pa. Mar. 21, 2006) (internal citations omitted). “In

that connection, courts interpret a contract according to its

plain language by reading the document as a whole in a fair and

commonsense manner so as to match the reasonable expectations of

the parties.” Princeton Women’s Ctr. v. Proselect Ins. Co., No.

Civ.A.11-1761, 2011 U.S. Dist. LEXIS 118641, at *12-13 (D.N.J.

Oct. 14, 2011) (internal citations & quotation marks omitted). 

In affording Subsection 4.7 a “fair and commonsense” reading

and interpreting it in the context of the overall contract, it is

evident that this subsection only applies to the monthly fee

payments detailed in Subsections 4.1 through 4.5. Although

Plaintiff makes much of the fact that Subsection 4.7 begins with

the words “[i]f any payment due to Franchisor . . .,” (emphasis

added), it cannot simply isolate this phrase and utilize it out

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of context. The phrase belongs to the overall section of the

agreement denoting the monthly fees owed by the parties, and

appears amongst language that specifically cross-references other

subsections of Section 4. (See e.g., Franchise Agreement § 4.6

(“The monthly payments required by Sections 4.3 and 4.5 of this

Agreement shall be submitted to Franchisor together with all

monthly reports required under this Agreement[.]”).) Notably,

although the various subsections in Section 4 cross-reference one

another, there is no reference to Subsection 13.6 of the

agreement governing liquidated damages. Had the parties intended

for the interest and late fee requirement to apply to the

liquidated damages provision in Subsection 13.6, they would have

specifically indicated this intent as they did for the other fee

requirements in Section 4. By the same token, while Subsection

13.6 references other sections of the contract, it makes no

mention of Subsection 4.7, which likewise indicates to the Court

that the two subsections are unrelated. Accordingly, when

reading Subsection 4.7 in the context of the entirety of Section

4, it is clear that the interest and late fees in this Subsection

only apply to the overdue fees previously listed in that Section. 

Thus, Plaintiff may only include $75,000.00 of liquidated damages

in its damages calculation, and may not include any late fees or

interest accrued thereon in its proposed amount. 

3. Attorneys’ Fees

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In its Motion For An Order Determining the Amount Due and

Entering Final Judgment, Plaintiff avers that it is entitled to

$58,298.01 in attorneys’ fees. After Defendants filed their

Response in Opposition to Plaintiff’s Motion, RRF filed a

subsequent brief and adjoining affidavit indicating that it has

since incurred an additional $7,805.00 in attorneys’ fees for

services rendered related to researching and responding to

Defendants’ response brief. Thus, RRF presently seeks attorneys’

fees totaling $66,103.01. 

“The Third Circuit has made clear that a district court may

not sua sponte reduce a fee award from the amount requested in

the fee petition.” N.V.E., Inc. v. Palmeroni, No. Civ.A. 128319,

2012 U.S. Dist. LEXIS 128319, at *17 (D.N.J. Sept. 10, 2012)

(citing Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d

694, 711 (3d Cir.2005); Weed-Schertzer v. Nudelman, et al., No

Civ.A.10-6402, 2011 U.S. Dist. LEXIS 108928, at *7 (D.N.J. Sept.

23, 2011)) (internal parentheticals omitted). Here, Defendants

have opposed neither Plaintiff’s original claim for attorneys’

fees, nor its subsequent amended request for an increased amount. 

The Court therefore lacks authority to deny Plaintiff its

requested amount of attorneys’ fees. Accordingly, Plaintiff is

entitled to include $66,103.01 in its proposed damages

calculation. 

4. Summary 

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In summary, Plaintiff requests $236,909.88 in damages

related to Civil Action No. 10-cv-4065. Of this total amount,

Plaintiff requests $58,697.00 in damages for unpaid franchise

fees, costs, royalties and interest accrued thereon. $37,386.48

of this amount is allocated to unpaid franchise fees, costs, and

royalties, and the remaining $21,310.52 is apportioned to

interest accrued on these outstanding payments through July of

2012. With respect to the amount claimed by RRF for damages

incurred as a result of unpaid franchise fees, costs, and

royalties, that amount should be reduced as follows: (1)

$5,081.65 for failure to properly account for check payments

previously made by Defendants; and (2) $469.00 for Signature

Program fees. Accordingly, Plaintiff is entitled to recover

$31,835.83 in damages for unpaid fees, costs, and royalties

[$37,386.48 – ($5,081.65 + $469.00) = $31,835.83]. As to the

interest accrued on these damages, Plaintiff is directed to file

a supplemental certification depicting the proper interest

calculation when considering the reduced damages total and time

that has lapsed since its last submission.

Plaintiff also avers that it is entitled to $112,109.87 in

liquidated damages. Based on the above discussion, the Court

finds that Plaintiff is entitled to recover the $75,000.00

liquidated damages lump sum provided by the franchise agreement,

but is not permitted to recover any interest accrued on this

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amount. 

Finally, Plaintiff further requests an attorneys’ fee award

of $66,103.01. Given that Defendants have not opposed this

request, the Court permits RRF to include this sum in their

overall damages account as well. 

C. Defendants’ Motion for Reconsideration in Civil Action

10-cv-4021

Just as in Civil Action 10-cv-4065, Defendants move for

reconsideration of the Court’s initial Opinion and Order entered

on June 28, 2012. Once again, rather than filing a separate

motion, Defendants have subsumed their reconsideration request

within their response in opposition to Plaintiff’s Motion For An

Order Determining Amount Due and Entering Final Judgment. In

fact, Defendants’ reconsideration motion is word-for-word

identical in both Civil Actions. Therefore, rather than rehash

issues that have already been considered by the Court both at

summary judgment and at present, the Court will deny Defendants’

instant Motion for Reconsideration in Civil Action 10-cv-4021 for

the same reasons it articulated above in Part II: Section A with

respect to Civil Action 10-cv-4065.

D. Plaintiff’s Motion For An Order Determining Amount Due

and Entering Final Judgment in Civil Action 10-cv-4120

The Court begins its analysis of Plaintiff’s Motion by

noting the vast factual and legal similarities between Civil

Actions 10-cv-4065 and 10-cv-4120. With respect to factual

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similarities, the only highly relevant factual difference between

the two cases is that Alpesh and Aruna Patel operated a RRF hotel

in Duluth, Minnesota in 10-cv-4120, while Asvin and Aruna Patel

operated a similar hotel in Bellmawr, New Jersey in 10-cv-4065. 

The franchise agreements at issue in both cases are nearly

identical linguistically. Further, the claims initially brought

by Plaintiff and adjudicated at summary judgment were also

largely the same in both actions. Given the high degree of

similarity, the issues in both cases often overlap and the

parties therefore have repeated several of the arguments — often

word-by-word — in Civil Action 10-cv-4021 that they made in Civil

Action 10-cv-4065. Thus, to the extent that a present issue

overlaps with one discussed above, the Court will not engage in

an extensive analysis of it so as to avoid repetition and

duplicity. 

In Civil Action 10-cv-4120, RRF requests a monetary judgment

against Defendants in the amount of $197,569.93. Specifically,

Plaintiff avers that it is entitled to: 

(1) $84,671.86 in unpaid franchise fees and accrued

interest, 

(2) $82,419.44 in lost profits, and 

(3) $30,478.63 in attorneys’ fees.

In response, Defendants assert that RRF failed to abide by

the Court’s June 2012 Order because its provided account of

damages incurred is neither complete nor correct. With respect

to the former argument, Defendants assert that Plaintiff’s

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account of its damages is incomplete because RRF only submitted

invoices from 2009 onward, despite knowing that the franchise

term began in September of 2007, and that its submitted account

of damages is intentionally disorganized so as to mask RRF’s true

intent to overcharge them. These are the precise arguments

previously made by Defendants in Civil Action 10-cv-4065. In

fact, Defendants’ briefing of these arguments is identical. 

Therefore, for the reasons articulated above, the Court will not

engage in an extensive discussion of these points and declines to

reduce the damages calculation on this basis. 

Defendants further argue that Plaintiff’s calculated damages

resulting from unpaid franchise fees are incorrect because it

failed to record specific payments made by the Patels and

improperly billed for certain fees. Defendants also object to

RRF’s alleged calculation of its liquidated damages. 

Defendants have once again repeated the arguments they made

in Civil Action 10-cv-4065 on the basis that they were improperly

billed for hardware monitoring and maintenance fees, travel agent

and GDS fees, in-house management training, and other expenses. 

Given that the two franchise agreements at issue here are — for

all intents and purposes — the same, the Court finds that

Plaintiff may include unpaid invoices for hardware monitoring and

maintenance fees, travel agent and GDS fees, in-house management

training, and other expenses in its total damages calculation for

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the same reasons articulated above. The Court will, however, 24

discuss Plaintiff’s claims for unpaid Signature Program fees and

RRF’s alleged failure to include certain payments in their

damages calculation. Moreover, the Court analyzes Plaintiff’s

claims for liquidated damages, lost profits, and attorneys’ fees

below. 

1. Signature Program Fees

Similar to the arguments above, Defendants object to the

inclusion of unpaid invoices for Signature Program fees in their

damages calculation on the basis that such fees were not

permissible under the agreement. Plaintiff, on the other hand,

avers that the fees were permissible under the broad language of

Subsections 5.15 and 5.3 of the contract. In particular, in its

Account Status Report detailing outstanding payments owed to it

by Defendants, Plaintiff includes the below invoices in the

following amounts as unpaid Signature Program fees:

 Defendants attach copies of several invoices for hardware 24

maintenance and monitoring fees, travel agent and GDS fees, and

charges for an in-house management training program to their

opposition papers as evidence of RRF’s alleged “bogus billing”

practices. (See Defs.’ Resp. Opp’n, Exs. 4, 6, 7 & 8.) In

addition to these charges being permissible under the terms of

the franchise agreement, the Court notes that the invoices

attached by Defendants in support of their argument reference the

RRF hotel in Bellmawr, New Jersey — not the RRF hotel in Duluth,

Minnesota at issue here. As such, Defendants’ purported

documentary support of their argument is inapplicable here, and

their argument doubly fails for this reason. 

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Invoice Number Amount

228531 $69.00

228532 $69.00

236200 $69.00

236201 $69.00

236202 $69.00

236203 $69.00

236205 $69.00

246780 $13.35

Total $496.35

(See Pl.’s Mot., Exs. C & D.)

For the same reasons as those articulated above in Civil

Action 10-cv-4065, the Court agrees with Defendants that the

Signature Program fees were impermissible under the franchise

agreement in the first instance, and therefore cannot be included

in RRF’s total damages calculation. Accordingly, $496.35 will be

deducted from Plaintiff’s total claimed damages award. 

2. Defendants’ Recorded Payments

Defendants further allege that Plaintiff has failed to

properly record several payments that the Patels made to RRF, and

that Plaintiff’s damages calculation should therefore be reduced

accordingly. More specifically, Defendants aver that RRF did not

record in excess of $15,000.00 of credit card payments made by

Alpesh Patel in December of 2009. As support for this argument,

Defendants attach a RRF Franchise Credit Card Payment slip in the

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amount of $12,600.00, as well as copies of several check stubs

indicating various payments made by Alpesh to American Express.

(See Defs.’ Resp. Opp’n, Exs. 9 & 10.) The evidentiary record

indicates, however, that Plaintiff recorded this credit card

payment in its Applied Receipts Register, attached to its Motion

as Exhibit A. Specifically, the Register indicates that on

October 12, 2009, the following payments were accounted for:

Invoice Number Receipt Number Amount

222311 119886C $62.29

222154 119886C $282.25

221921 119886C $72.00

222434 119886C $58.72

222496 119886C $59.18

222952 119886C $72.00

223212 119886C $101.17

24418 119886C $126.44

81347 119886C $11,977.24

81126 119886C $19.46

24723 119886C + $230.75 CREDIT

Total $12,600.00

(Pl.’s Mot., Ex. A, RRF Applied Receipts Register.) Accordingly,

given Plaintiff’s inclusion of this payment in its Applied

Receipts Register, and Defendants’ lack of evidence to the

contrary, RRF’s damages should not be reduced by this amount. 

Furthermore, Defendants likewise assert that RRF failed to

record a check payment made by Alpesh — Check No. 07311 — in the

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amount of $4,358.00. Unlike the check payments in Civil Action

10-cv-4065, Defendants have not attached a copy of the disputed

check, nor any of Alpesh’s bank statements to support their

claim. Further, the check stubs attached by Defendants depicting

payments made to American Express in various amounts are

inapplicable here for several reasons. First, they indicate

payments made by the Patels to American Express — not payments

made to RRF. Secondly, and more importantly, none of the

attached stubs are from Check No. 07311. Defendants have

therefore introduced no evidence to support their claim that RRF

failed to account for Check No. 07311. Rather, although neither

party raises this point, the Court through its own review of the

record has determined that Check No. 07311 is the check disputed

by Defendants in Civil Action 10-cv-4065. More specifically,

Check No. 07311 bears the hotel’s address in Bellmawr, New

Jersey, and was sent in an envelope with Asvin Patel’s home in

Moorestown, New Jersey as the return address. The Court already

addressed issues related to Check No. 07311 in Civil Action 10-

cv-4065 above. As such, Defendants’ reliance on this check in

the instant matter is misplaced. Plaintiff’s claimed damages

will therefore not be reduced on these grounds. 

3. Interest Accrued on Defendants’ Unpaid Franchise

Fees 

Just as in Civil Action 10-cv-4065, the Court directs

Plaintiff to file additional certifications depicting the proper

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interest calculation in light of the reduced damages total and

time that has lapsed since its last submission.

4. Liquidated Damages

Defendants also assert that Plaintiff’s calculation of

liquidated damages is incorrect because late fees and interest

accrual do not apply to liquidated damages under the terms of the

franchise agreement. RRF, however, does not include liquidated

damages in its submitted damages calculation in this action. 

Rather, what appears to have happened here is that Defendants

have mistakenly objected on these grounds because they have

essentially recycled their opposition brief from Civil Action 10-

cv-4065. Thus, given that Plaintiff did not include liquidated

damages in its sought damages total here in the first place,

Defendants’ contentions on this point are without merit. 

5. Lost Profits

In its June 28, 2012 Opinion and Order, the Court held that,

although RRF is entitled to recover lost profits based on

Defendants’ premature termination of the franchise agreement,

questions of fact remained as to the precise amount of damages

resulting from any such lost profits. (See Docket No. 44,

06/28/12 Op. at 39–40.) Specifically, the Court noted that

Plaintiff’s lost profits calculation may have been “inflated”

because it did not account for the fact that Defendants’ revenues

had declined in the months preceding the termination of the

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franchise agreement. (Id.) In its present Motion, RRF asserts

that it is entitled to $82,419.44 in lost profits. In support of

its lost profits calculation, Plaintiff has attached a chart

depicting the average gross room revenue for the hotel for the

twenty-four months preceding Defendants’ premature termination of

the contract. (See Pl.’s Mot., Ex. F.) 

In their Response in Opposition, Defendants do not object to

Plaintiff’s calculation of its reasonably certain lost profits,

nor have they introduced any evidence that would call Plaintiff’s

calculation into question. Given the lack of objection, the

Court finds that Plaintiff is entitled to include $82,419.44 for

reasonably certain lost profits in its recoverable damages

amount. 

6. Attorneys’ Fees

In its Motion For An Order Determining the Amount Due and

Entering Final Judgment, Plaintiff avers that it is entitled to

$24,353.63 in attorneys’ fees. After Defendants filed their

Response in Opposition and Motion for Reconsideration, RRF

requested an additional $6,125.00 in attorneys’ fees for services

rendered related to researching and responding to Defendants. 

Thus, RRF presently seeks attorneys’ fees in the total amount of

$30,478.63. In support of its claim, Plaintiff has attached

affidavits from its counsel, Mr. Peter J. Boyer, Esq. and Mr.

David G. Gunther, Esq., detailing their fees, time spent, and

services rendered, as well as a ledger of services rendered by

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date in this litigation and copies of counsels’ attorney profiles

and resumes. 

The Court notes at the outset of its discussion that

Plaintiff’s counsel’s work in Civil Action 10-cv-4021 is directly

parallel to its work in Civil Action 10-cv-4065. Indeed, as

expressed above, the dockets in these actions mirror one another,

as briefs containing essentially the same language and arguments

were filed on the same days by the same counsel. For example, as

has been noted several times throughout this Opinion, counsel’s

briefs on the instant Motions are almost precise word-for-word

copies of each other in both legal actions. Indeed, this is why

the Court has presently chosen to jointly discuss and resolve the

disputes in one Opinion and Order. 

As a result of the highly common ground between these two

civil actions, it makes sense that the time spent and labor

expended here were reduced. To be sure, the research and

drafting of two entirely distinct legal briefs is a much more

time-consuming and laborious process than the filing of two

nearly identical briefs. Indeed, Mr. Boyer appears to

acknowledge as much in his affidavit: “[s]imultaneously with the

handling of this matter, we also handled a related matter pending

before this Court captioned as Red Roof Franchising, LLC v. Asvin

Patel el al., Docket No. 10-4065 relating to a hotel in Bellmawr,

New Jersey. . . . Much of the underlying work, especially

research and drafting of motion papers, was initially done in the

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4065 matter, and the benefit of that work is reflected in reduced

fees and costs incurred and billed in this matter.” (Pl.’s Mot.,

Ex. A, 7/27/12 Affidavit of Peter J. Boyer ¶ 9.) 

In Levy v. Global Credit & Collection Co., No. Civ.A.10-

4229, 2011 WL 5117855 (D.N.J. Oct. 27, 2011), Judge Kugler, a

U.S. District Court judge in this vicinage, addressed a scenario

in which a law firm specialized in a certain area of the law and

therefore frequently filed nearly identical briefing in numerous

cases throughout the District. Given the repetitive nature of

the cases and the recycling of briefing, the court found it

appropriate to reduce counsel’s claimed fee. Id. at *6–8. In so

finding, Judge Kugler stated that: “[i]t is clear that

Plaintiff’s attorney has cranked out its fee petition in a

mechanical fashion. The Court does not fault a firm experienced

in FDCPA litigation for reusing its materials in litigation. 

However, the Court requires that the Plaintiff’s fee reflect this

mechanical practice.” Id. at *8.

The primary difference between Levy and the instant case,

however, is that Defendants have not objected to Plaintiff’s

proposed attorneys’ fee award in any manner here. The law in

this Circuit is very clear that a court cannot sua sponte

decrease an attorneys’ fee award absent direct and specific

objections by opposing counsel. See Rode v. Dellarciprete, 892

F.2d 1177, 1183 (3d Cir. 1990); Bell v. United Princeton Props.,

Inc., 884 F.2d 713, 720 (3d Cir.1989); Cunningham v. City of

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McKeesport, 753 F.2d 262, 267 (3d Cir.1985), Connor v. Sedgwick

Claims Mgmt. Servs., Inc., No. Civ.A.09-1140, 2012 WL 2595072, at

*3 (D.N.J. Dec. 18, 2012) (Hillman, J.); Wade v. Colaner, No.

Civ.A.06-3715, 2010 WL 5479625, at *4 (D.N.J. Dec. 28, 2010);

Jefferson v. City of Camden, No. Civ.A.01-4218, 2006 WL 1843178,

at *2 (D.N.J. June 30, 2006) (Kugler, J.). The burden of proving

that a request for attorneys’ fees is reasonable falls on the

party seeking the fees. Rode, 892 F.2d at 1183. To satisfy this

burden, the party must “submit evidence supporting the hours

worked and rates claimed.” Id. (quoting Hensley v. Eckerhart,

461 U.S. 424, 433 (1983)). If the party opposing the fee

petition meets its burden of proving that an adjustment is

necessary, the court has wide discretion to adjust the attorneys’

fee for a variety of reasons. Apple Corps. Ltd. v. Int’l

Collectors Soc., 25 F.Supp.2d 480, 485 (D.N.J. 1998) (Greenaway,

J.) (citing Rode, 892 F.2d at 1183). “However, the court may not

decrease a fee award based on factors not raised by the adverse

party.” Apple Corps., 25 F.Supp.2d at 485 (citing Rode, 892 F.2d

at 1183). It is well established that, if the party opposing the

fee award does not meet its burden, the court must award the

attorneys’ fees at the requested rate. Apple Corps., 25

F.Supp.2d at 485 n.4 (citing Smith v. Phila. Housing Auth., 107

F.3d 223, 225 (3d Cir. 1997)). Indeed, “[t]he Court of Appeals

has consistently emphasized that . . . the ‘district court cannot

decrease a fee award based on factors’” that the adverse party

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has not specifically objected to. Stair v. Thomas & Cook, No.

Civ.A.06-4454, 2009 WL 1635346, at *2 (D.N.J. June 10, 2009)

(Simandle, J.) (quoting Interfaith Cmty. Org. v. Honeywell Int’l,

Inc., 426 F.3d 694, 713 (3d Cir. 2005); Loughner v. Univ. of

Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001); Rode, 892 F.2d at

1183). 

 To be clear, in the above discussion the Court in no way

intends to comment on the reasonableness of Plaintiff’s claimed

attorneys’ fees, but rather merely observes Defendants’ rather

surprising choice not to respond in any way, shape, or form. 

Plaintiff’s request for fees incurred and Defendants’ response —

or lack thereof — are decisions left entirely to the discretion

of the parties, and the Court makes no findings on the nature or

amount of the attorneys’ fee award in this action. Given that

Plaintiff has submitted sufficient evidence to support its sought

attorneys’ fee award and that Defendants have not objected, RRF

is permitted to include $30,478.63 in its damages calculation to

represent attorneys’ fees it incurred in this litigation. 

6. Summary 

In Civil Action 10-cv-4120, RRF requests a monetary judgment

against Defendants in the amount of $197,569.93. Specifically,

Plaintiff avers that it is entitled to $84,671.86 in unpaid

franchise fees and accrued interest. Of this amount, Plaintiff

attributes $55,141.74 to outstanding fees and $29,530.12 for

interest accrued thereon through July 2012. With respect to

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outstanding fees, $496.35 should be deducted from Defendants’

calculation for Signature Program fees, as they were not

authorized by the franchise agreement between the parties in the

first instance. Moreover, as to the interest accrued on these

damages, Plaintiff is directed to file a supplemental

certification depicting the proper interest calculation in light

of the reduced damages total and time that has lapsed since its

last submission. 

Plaintiff also seeks $82,419.44 in lost profits and

$30,478.63 in attorneys’ fees. Defendants have not objected to

either of these requests. Accordingly, the Court finds that

Plaintiff is entitled to the following damages in Civil Action

10-cv-4120:

(1) $54,645.39 in damages for unpaid franchise fees

($55,141.74 – $496.35), plus interest accrued thereon; and

(2) $82,419.44 in lost profits; and

(3) $30,478.63 in attorneys’ fees. 

III. CONCLUSION

Based on the above, the Court will deny Defendants’ Motions

for Reconsideration in Civil Actions 10-cv-4065 and 10-cv-4021,

as Defendants may not raise new arguments or relitigate their

initial claims within the context of such motions. 

The Court will grant in part and deny in part Plaintiff’s

Motion For An Order Determining Amount Due and Entering Final

Judgment in Civil Action 10-v-4065. Plaintiff’s Motion is denied

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to the extent it: (1) fails to account for check payments

previously made by Defendants, (2) seeks to include charges for

Signature Program fees in its overall damages amount, and (3)

seeks to obtain interest accrued on liquidated damages. All

other aspects of Plaintiff’s Motion will be granted. 

Plaintiff’s Motion For An Order Determining Amount Due and

Entering Final Judgment in Civil Action 10-cv-4021 will likewise

be granted in part and denied in part. Plaintiff’s Motion will

be denied to the extent it seeks to include charges for Signature

Program fees in its damages amount. All other aspects of

Plaintiff’s Motion will be granted. 

Moreover, Plaintiff is directed to file new certifications

in support of the interest accrued on its damages in both Civil

Actions. These new interest calculations shall account for

reduced damages totals and time lapsed since Plaintiff’s last

submission.

An appropriate Order follows. 

/s/ Noel L. Hillman

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

Dated: 03/28/2013

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