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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

UNITED STATES OF AMERICA, et al.,

Plaintiffs,

v.

APS CONTRACTING, INC., et al.,

 Defendants.

Civil No. 11-779-KMW

OPINION

THIS MATTER comes before the Court by way of motion of 

Plaintiff Cardinal Contracting Company, LLC (“Plaintiff”), seeking 

final judgment by default against Defendant A.C.C. Construction, 

Limited Liability Company (“ACC”) pursuant to FED. R. CIV. P. 55(b)(2)

and leave to file an amended pleading pursuant to FED. R. CIV. P. 15(a). 

No opposition to the motion has been filed. The Court has considered 

the submissions of the parties pursuant to FED. R. CIV. P. 78, and for 

the reasons set forth below, and for good cause shown, Plaintiff's 

motion is granted in part and denied in part. See FED. R. CIV. P. 78. 

I. Background

Plaintiff filed a Complaint against Defendants APS 

Contracting, Inc., Fidelity and Deposit Company of Maryland, and ACC 

on February 11, 2011 alleging that ACC entered into a subcontract with 

Plaintiff under which Plaintiff agreed to furnish a portion of the 

labor and material required for construction of a Combined Maintenance 

Facility at the Fort Dix United States Army Installation (“Fort Dix”), 

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Plaintiff performed the work required under the contract, and ACC 

failed to pay Plaintiff as agreed under the contract. (Compl. ¶¶ 

9-18, Doc. No. 1). Plaintiff sets forth claims for breach of contract 

and violations of the Prompt Payment Act against Defendant ACC. 

(Compl., Doc. No. 1). Defendant ACC was served on March 25, 2011 at 

the following address and service was accepted by Suezanne Zimmerman, 

an agent of ACC: ACC Construction LLC, 2303 Owen Court, Toms River, 

NJ 08755. (Affidavit of Service, Doc. No. 8). Defendant ACC failed 

to respond to the Complaint or otherwise appear in this action. The 

Clerk of Court entered Default against Defendant ACC on May 13, 2011. 

II. Motion For Final Judgment By Default 

a. Standard

 Rule 55(b)(2) of the Federal Rules of Civil Procedure 

authorizes the Court "to enter a default judgment against a properly 

served defendant who fails to file a timely responsive pleading." 

Chanel, Inc. v. Gordashevsky, 558 F. Supp. 2d 532, 535 (D.N.J. 2008) 

(citing Anchorage Assoc. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 

177 n.9 (3d Cir. 1990)). "Prior to obtaining a default judgment under 

either Rule 55(b)(1) or Rule 55(b)(2), there must be entry of default 

as provided by Rule 55(a)." Nationwide Mut. Ins. Co. v. Starlight 

Ballroom Dance Club, Inc., 175 F. App'x 519, 521 n.1 (3d Cir. 2006). 

"[B]efore granting a default judgment, the Court must first ascertain 

whether the unchallenged facts constitute a legitimate cause of 

action, since a party in default does not admit mere conclusions of 

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law." Chanel, Inc., 558 F. Supp. 2d at 536. "Once a plaintiff has 

met the prerequisites for default judgment -- entry of default and 

proof of damages -- the question of whether or not to enter a default 

judgment is left primarily to the discretion of the district court." 

Malik v. Hannah, 661 F. Supp. 2d 485, 490 (D.N.J. 2009).

Further, prior to entering default judgment against a 

defendant who failed to file a responsive pleading, the Court must also 

consider the following three factors: (1) whether the plaintiff will 

be prejudiced if default is not granted, (2) whether the defendant has 

a meritorious defense, and (3) whether the defendant's delay was the 

result of culpable misconduct. Emcasco Ins. Co. v. Sambrick, 834 F.2d 

71, 73 (3d Cir. 1987); see also Chanel, Inc., 558 F. Supp. 2d at 537.

b. Discussion

Plaintiff seeks final judgment by default entered against 

Defendant ACC on its breach of contract and Prompt Payment Act claims.

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i. Breach of Contract

To state a claim for breach of contract under New Jersey 

law, a plaintiff must allege “(1) a contract; (2) a breach of that 

contract; (3) damages flowing therefrom; and (4) that the party 

performed its own contractual duties.” Video Pipeline, Inc. v. Buena 

Vista Home Entm’t, Inc., 210 F. Supp. 2d 552, 561 (D.N.J. 2002). 

 

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Though each of Plaintiff’s claims against Defendant ACC are state law claims, the 

Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 

supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

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Plaintiff alleges in the Complaint that “[o]n or about 

December 11, 2009, ACC entered into a written contract with [Plaintiff] 

in which the latter agreed to furnish to the former a certain portion 

of the labor and material provided for in the Prime Contract” and that 

“ACC agreed to pay [Plaintiff] thirty days after the date of any invoice 

plus interest accruing on any payment not received within forty-five

days.” Compl. ¶¶ 15-16. Further, Plaintiff alleges that it

“performed work . . . pursuant to the [contract] with ACC.” Id. at 

¶ 17. Finally, Plaintiff alleges that “ACC failed to pay [Plaintiff] 

at least $74,002.50 due under the [contract] within thirty days of 

invoice date, and more than ninety days have passed since its failure 

to pay.” Id. at ¶ 18. Therefore, in its Complaint Plaintiff has set 

forth a cause of action for breach of contract. 

ii. Prompt Payment Act

The New Jersey Prompt Payment Act provides that “[i]f a . 

. . subsubcontractor has performed in accordance with the provisions 

of its contract with the . . . subcontractor and the work has been 

accepted . . ., and the parties have not otherwise agreed in writing, 

the prime contractor shall pay to its subcontractor and the 

subcontractor shall pay to its subsubcontractor within 10 calendar 

days of the receipt of each periodic payment, final payment or receipt 

of retainage monies, the full amount received for the work of the . 

. . subsubcontractor based on the work completed or the services 

rendered under the applicable contract.” N.J. Stat. Ann. § 

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2A:30A-2(b). “If a payment due pursuant to the provisions of this 

section is not made in a timely manner, the delinquent party shall be 

liable for the amount of money owed under the contract, plus interest 

at a rate equal to the prime rate plus 1%.” N.J. Stat. Ann. § 

2A:30A-2(c). Further, “the prevailing party shall be awarded 

reasonable costs and attorney fees.” N.J. Stat. Ann. § 2A:30A-2(f).

Plaintiff alleges in its Complaint that “ACC was a 

‘Subcontractor’ as defined by the Prompt Payment Act” and Plaintiff 

“was a ‘Subsubcontractor’ as defined by the Prompt Payment Act.” 

Compl. ¶¶ 39-40. Further, Plaintiff alleges that “ACC . . . was 

statutorily obligated to pay [Plaintiff] for services rendered and 

materials delivered within ten calendar days of receipt of payment by 

[the contractor]” as required by the Prompt Payment Act. Id. at ¶ 43. 

Finally, Plaintiff alleges that “[i]n breach of the Prompt Payment Act, 

ACC has failed to pay [Plaintiff] within ten calendar days of receipt 

of payment by [the contractor].” Id. at ¶ 44. Therefore, in its 

Complaint, Plaintiff has set forth a cause of action under the Prompt 

Payment Act.

iii. Emcasco Factors

In addition to evaluating the Plaintiff's claims to ensure 

that Plaintiff has set forth legitimate causes of action against the 

defendant, "[p]rior to entering default judgment, the Court must also 

consider the following three factors: (1) whether the plaintiff will 

be prejudiced if default is not granted, (2) whether the defendant has 

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a meritorious defense, and (3) whether the defendant's delay was the 

result of culpable misconduct." Chanel, Inc., 558 F. Supp. 2d at 537 

(citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73 (3d Cir. 1987)). 

"Although these factors are generally more pertinent where the 

defendant appears to contest the entry of default," the factors in this 

case weigh in Plaintiff's favor. Chanel, Inc. v. Gordashevsky, No. 

05-5270, 2007 U.S. Dist. LEXIS 6576, at *13 (D.N.J. Jan. 29, 2007). 

As to the first factor, Plaintiff will be prejudiced if 

default is not granted since ACC’s failure to file any responsive 

pleadings or otherwise appear in this matter has left Plaintiff without 

a recourse regarding Plaintiff's claims against ACC. The Court is 

unable to determine whether Defendant ACC has a meritorious defense 

or whether ACC’s delay was the result of its own culpable misconduct 

since ACC failed to file any responsive pleadings in this matter or 

otherwise appear to explain the delay. Therefore, based on the 

Emcasco factors, Plaintiff is entitled to default judgment.

iv. Damages

Plaintiff seeks $74,002.50, plus interest, attorneys’ fees 

and costs for a total of $109,767.00. When determining whether to 

enter judgment on default, “the Court need not accept the moving 

party’s legal conclusions or allegations relating to the amount of 

damages.” Chanel, Inc., 558 F. Supp. 2d at 535-36. The party seeking 

an entry of default must show proof of damages. See Malik, 661 F. Supp. 

2d at 490.

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Plaintiff submitted a certification of Martin Costa

(“Costa”), the Controller for Plaintiff, Cardinal Contracting 

Company, LLC, certifying that ACC failed to pay Plaintiff $74,002.50.

Costa Cert. ¶ 7. Costa further certifies that he calculated interest 

pursuant to the Prompt Payment Act, which provides that “the delinquent 

party [, ACC,] shall be liable for the amount of money owed under the 

contract, plus interest at a rate equal to the prime rate plus 1%.” 

Costa Cert. ¶ 8. Costa’s certification provides that the prime 

interest rate from January 2010 to date was 3.25%. Id. He therefore 

calculated the interest due on the unpaid amount owed by ACC at 4.25% 

for a total of 575 days through July 31, 2012. Id. Further, Costa 

certifies that Plaintiff has been billed a total of $30,808.00 for 

attorney fees in this matter. Costa Cert. ¶ 9. 

The Court finds that Plaintiff’s submission of the Costa 

certification is insufficient evidence of damages in this case because 

it lacks supporting documentation regarding the damages claimed. The 

Court therefore directs Plaintiff to submit to the Court evidence of 

Plaintiff’s damages in the form of a supplemental affidavit with 

supporting documentation of each aspect of Plaintiff’s claim for 

damages within fourteen (14) days of the date of this Opinion and its 

accompanying Order.

III. Motion to Amend 

a. Standard

Federal Rule of Civil Procedure 15 governs amendments to 

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pleadings. See FED. R. CIV. P. 15. The Rule provides that leave to 

amend shall be freely given when justice so requires. FED. R. CIV. P.

15(a)(2). Thus, leave generally should be granted absent undue delay, 

bad faith or dilatory motive on the part of the movant, repeated failure 

to cure deficiencies by amendments previously allowed, undue prejudice 

to the opposing party by virtue of allowance of the amendment, or 

futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). The 

decision as to whether leave to amend a complaint should be granted 

"is a matter committed to the sound discretion of the district court." 

Arab African Int'l Bank v. Epstein, 10 F.3d 168, 174 (3d Cir. 1993). 

However, in this case, Federal Rule of Civil Procedure 16 is 

implicated because a scheduling order was entered which set a deadline 

by which the parties could amend the pleadings or add new parties. As 

such, the scheduling order controls the course of this action unless 

it is modified by the Court. See FED. R. CIV. P. 16(d). 

Federal Rule of Civil Procedure 16(b) provides that scheduling 

orders may be modified only upon a showing of good cause and with the 

judge's consent. See FED. R. CIV. P. 16(b)(4). Thus, a motion which 

seeks to amend the pleadings after the deadline established by a 

court's scheduling order should first be considered pursuant to Rule 

16(b)'s good cause requirement before the court's consideration of the 

merits of the motion pursuant to Rule 15. See Price v. Trans Union, 

LLC, 737 F. Supp. 2d 276, 279 (E.D. Pa. 2010)("once the pretrial 

scheduling order's deadline for filing motions to amend the pleadings 

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has passed, a party must, under Rule 16(b), demonstrate 'good cause' 

for its failure to comply with the scheduling order before the trial 

court can consider, under Rule 15(a), the party's motion to amend its 

pleading.").1 “’Good cause’ under Rule 16(b) focuses on the diligence 

of the party seeking modification of the scheduling order.” 

Chancellor v. Pottsgrove Sch. Dist., 501 F. Supp. 2d 695, 701 (E.D. 

Pa. 2007). "[I]f the party was not diligent, there is no 'good cause' 

for modifying the scheduling order and allowing the party to file a 

motion to amend its pleading." Id. at 279-80 (citing Pottsgrove Sch. 

Dist., 501 F. Supp. 2d at 701). Good cause may be lacking where a party 

had knowledge of the potential claim at the outset of the litigation 

or prior to the amendment deadline, was in possession of the 

information which formed the basis for the potential claim prior to 

the deadline or where a party fails to seek an extension to the 

deadline. See Price, 737 F. Supp. 2d at 280; see also Stallings v. 

IBM Corp., No. 08-3121, 2009 WL 2905471, at * 16 (D.N.J. Sept. 8, 2009);

Assadourian v. Harb, No. 06-896, 2008 WL 4056361, at *3 (D.N.J. Aug. 

28, 2008). The Third Circuit has also held that good cause may not 

exist where the party seeking to amend after the court’s deadline did 

not “specif[y] what led it to decide that [additional claims] could 

 

 1. In a more recent decision, although unpublished and, thus, not precedential, 

the Third Circuit disagreed with the assertion "that the Third Circuit has not 

adopted a 'good cause' requirement in determining the propriety of a motion to amend 

a pleading after the deadline [set by a scheduling order] has elapsed" and affirmed 

the magistrate judge's denial of a motion to amend for failure to satisfy Rule 16. 

See Dimensional Commc'ns, Inc. v. OZ Optics, LTD., 148 F. App'x 82, 85 (3d Cir. 

2005)(unpublished). 

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be pled or why information from independent sources could not have been 

obtained earlier.” E. Minerals & Chems. Corp. v. Mahan, 225 F.3d 330, 

339 (3d Cir. 2000).

b. Discussion

Here, the Court finds that Plaintiff has not established 

good cause to amend the pleadings. Plaintiff’s motion to amend is 

supported by a brief which is merely a recitation of facts and legal 

conclusions. Plaintiff does not address or acknowledge Rule 16 or the 

good cause standard in its brief, but instead relies solely on Rule 

15. Plaintiff thereby provides no explanation as to why good cause 

exists to allow Plaintiff to file a motion to amend the Complaint to 

add a new party and a new claim almost one year after the deadline for 

amendments to the pleadings or joinder of new parties.

2 Though ACC 

did not participate, Plaintiff and the other defendants in this case 

had almost eight months to engage in discovery prior to the March 2012 

arbitration between Plaintiff and Defendants APS Contracting, Inc. and 

Fidelity and Deposit Company of Maryland.3 

Plaintiff sets forth in the statement of facts in its brief 

in support of its motion to amend that Kris Zimmerman (“Zimmerman”), 

principal of ACC, testified about certain facts at the arbitration on 

March 28, 2012. (Pl. Br. in Support of Motion to Amend at p.5, Doc. 

 

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The Court’s Scheduling Order dated June 9, 2011 set forth a deadline for 

amendments to the pleadings or to add new parties of August 11, 2011. (Doc. No. 

10). Plaintiff filed its motion to amend on August 2, 2012, almost one year after 

the deadline as set forth in the Court’s June 9, 2011 Scheduling Order expired.

3

See June 9, 2011 Scheduling Order (Doc. No. 10); November 16, 2011 Scheduling Order 

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No. 16-3). However, Plaintiff does not assert in its brief that 

Plaintiff could not have ascertained those facts prior to the August 

11, 2011 deadline for amendments to pleadings or joinder of parties, 

in particular during the almost eight months of fact discovery that 

took place between June 9, 2011 and January 31, 2012. Plaintiff 

further fails to explain why Plaintiff could not have learned those 

facts prior the deadline, from independent sources or otherwise, or 

at the very least why Plaintiff could not have included Zimmerman as 

a principal of ACC in the original Complaint. Finally, Plaintiff 

fails to explain the delay between Zimmerman’s testimony at the 

arbitration in March and filing the motion to amend in August, five 

months later. Therefore, Plaintiff has not established good cause 

under Rule 16 to amend the Complaint after the Court’s August 11, 2011 

deadline and the motion to amend will therefore be denied. 

IV. Conclusion

For the foregoing reasons, Plaintiff’s motion for entry of 

final judgment by default against Defendant ACC will be granted; 

however, the Court will reserve on the issue of damages pending the 

Court’s receipt of a supplemental affidavit setting forth evidence of 

Plaintiff’s damages. Further, Plaintiff’s motion to amend the 

Complaint will be denied. The Court will enter an Order implementing 

this Opinion.

 

(Doc. No. 13).

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s/ Karen M. Williams 

KAREN M. WILLIAMS

United States Magistrate Judge

cc: Hon. Joseph H. Rodriguez

 

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