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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 (“Defendant”) pursuant to Fed. R. Civ. P. 

55(b)(2). The Court granted Plaintiff’s motion seeking final 

judgment by default against Defendant ACC on February 11, 2013, but 

reserved on the issue of damages because Plaintiff failed to submit 

sufficient evidence to the Court to prove the damages claimed. (Doc. 

No. 18). The Court ordered Plaintiff to file an affidavit 

supplementing Plaintiff’s submissions regarding damages sought from 

Defendant ACC within fourteen (14) days of the date of this Order. 

Id. Plaintiff submitted a Declaration of Sean E. Regan, Esquire on 

February 22, 2013 attaching a billing summary evidencing a total of 

$34,313.50 in attorney’s fees and costs accrued by Plaintiff and an 

Affidavit of Martin Costa on April 16, 2013 attaching invoices and 

checks evidencing an unpaid balance of $74,002.50 due to Plaintiff 
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from Defendant and a chart displaying the prime rates from 2001 to 

2012. See Decl. of Sean E. Regan, Esquire (“Regan Decl.”) (Doc. No. 

19), Aff. of Martin Costa (“Costa Aff.”) (Doc. No. 20-1).

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”), 

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. 

The Court granted Plaintiff’s motion for final judgment by default, 

but reserved on damages. 

II. Analysis

a. Legal Standard – Damages on Motion for Default 

Judgement
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 When entering a default judgment, “the Court need not accept 

the moving party’s legal conclusions or allegations relating to the 

amount of damages.” Chanel, Inc. v. Gordashevsky, 558 F. Supp. 2d 532, 

535-36 (D.N.J. 2008). The Plaintiff must show proof of the amount of 

damages “to a reasonable degree of certainty.” JPMorgan Chase Bank, 

N.A. v. Candor Constr. Grp., Inc., Civ. No. 08-3836, 2010 WL 3210521, 

at *1 (D.N.J. Aug. 12, 2010) (quoting Video Pipeline, Inc. v. Buena 

Vista Home Entm't Inc., 275 F. Supp. 2d 543, 566 (D.N.J. 2003)). 

b. Damages Recoverable Pursuant To Plaintiff’s Claims 

Against Defendant

The Court granted Plaintiff’s motion for final judgment by 

default on Plaintiff’s claims for breach of contract and violation of

the New Jersey Prompt Payment Act. Plaintiff seeks the following 

damages: $74,002.50 in damages representing the unpaid balance for 

work performed by Plaintiff; plus $4,956.60 in interest; and $34,

313.50 in attorney’s fees and costs.

i. Breach of Contract

Under New Jersey law, a party may recover damages from a 

breach of contract if the damages arose “naturally,” and they were a 

“reasonably certain consequence of the breach.” Donovan v. 

Bachstadt, 453 A.2d 160, 166 (N.J. 1982) (citing Kozlowski v. 

Kozlowski, 403 A.2d 902 (N.J. 1979)). The plaintiff must show enough 

evidence to allow the trier of fact to determine a “fair and reasonable 

estimate.” RNC Sys., Inc. v. Modern Tech. Grp., Inc., 861 F. Supp. 2d 
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436, 457 (D.N.J. 2012) (quoting Caldwell v. Haynes, 643 A.2d 564, 571 

(N.J. 1994)). Therefore, Plaintiff is entitled to the outstanding 

amount due to Plaintiff under the contract under its breach of contract 

claim.

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 . . . payment, . . . 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. § 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). Additionally, “the prevailing party shall be awarded 

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

(f). Therefore, Plaintiff is entitled to the outstanding amount due 

to Plaintiff under the contract, interest, and attorney’s fees and 

costs under its New Jersey Prompt Payment Act claim.

c. Plaintiff’s Damages
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i. Unpaid Balance For Work Performed

Plaintiff has submitted an affidavit of Martin Costa, the 

Controller for Plaintiff, attaching invoices and checks showing the 

money owed to Plaintiff by Defendant. Costa Aff. ¶ 7-11 (Doc. No. 

20-1). Evidence of the amount of damages is sufficient when a 

plaintiff submits invoices and checks proving the defendant’s unpaid 

balance. See, e.g., JPMorgan Chase Bank, N.A., 2010 WL 3210521, at 

*2-3 (Director of Construction for plaintiff testified and showed 

invoice spreadsheets displaying unpaid balances and payments 

plaintiff made on behalf of defendant); Imperial Constr. Grp., Inc. 

v. Jocanz Inc., Civ. No. 06-709, 2008 WL 2966794, at *4-6 (D.N.J. July 

31, 2008) (plaintiff showed evidence of damages by submitting checks 

plaintiff paid on behalf of defendant and unpaid invoices sent to 

defendant). The evidence shows that Plaintiff sent Defendant an 

invoice for $185,752.50 on December 22, 2009, and another invoice for 

$3,250.00 on April 23, 2010, for a total of $189,002.50 Defendant owed 

to Plaintiff. Costa Aff. Ex. A. (Doc. No. 20-1). Defendant paid 

Plaintiff $80,000 on March 16, 2010 and $35,000 on March 22, 2010 

through two checks, for a total of $115,000.00 paid, leaving $74,002.50 

outstanding. Costa Aff. Ex. A. (Doc. No. 20-1). Therefore, 

Plaintiff has shown sufficient evidence that Defendant owes $74,002.50 

to Plaintiff for the work Plaintiff performed under the subcontract 

with Defendant. Costa Aff. Ex. A-B. (Doc. No. 20-1).

ii. Interest
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 The New Jersey Prompt Payment Act provides that the interest 

rate for late payments is prime rate plus 1%. When the prime rate is 

“easily ascertainable from financial publications,” the Court may 

“take judicial notice of the applicable rate.” Rankin v. DeSarno, 89 

F.3d 1123, 1134 n.11 (3d Cir. 1996), overruled on other grounds. 

“‘Prime rate’ means the average predominant prime rate, as determined 

by the Board of Governors of the Federal Reserve System, quoted by 

commercial banks to large businesses . . . .” N.J. Stat. Ann. § 54:48-2. 

Plaintiff submitted evidence that the prime rate during the applicable 

time period is 3.25%, by way of a chart of prime rates from Cyprus Credit 

Union quoted by the Wall Street Journal. Costa Aff. ¶ 9, Ex. C (Doc. 

No. 20-1).

 According to the agreement between Plaintiff and Defendant, 

Defendant agreed to pay Plaintiff “thirty days after the date of any 

invoice plus interest accruing on any payment not received within 

forty-five days.” Costa Aff. ¶ 5 (Doc. No. 20-1). Therefore, 

interest must be calculated beginning February 5, 2010, forty-five

days after the invoice issued by Plaintiff, which was dated December 

22, 2010. Costa Aff. Ex. B (Doc. No. 20-1). The interest rate of 4.25%1

multiplied by the unpaid balance of $74,002.50, divided by 365 days, 

is $8.62 per day. The number of days from February 5, 2010 to July 

10, 2013 is 1251, multiplied by $8.62, is a total of $10,783.62.

iii. Attorney’s Fees

 

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The applicable interest rate is the prime rate plus 1% pursuant to the New 
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Plaintiff is entitled to “reasonable costs and attorney 

fees” under the New Jersey Prompt Pay Act. § 2A: 30A-2(f). The Court 

has the discretion to determine whether an amount of requested 

attorney’s fees is reasonable. Spectrum Produce Distrib., Inc. v. 

Fresh Mktg., Inc., Civ. No. 11-06368, 2012 WL 2369367, at *3 (D.N.J. 

June 20, 2012). “To the extent the affidavit leaves any doubt as to 

the amount of fees to be awarded, these doubts shall be resolved against 

an award of fees.” Veneziano v. Long Island Pipe Fabrication & Supply 

Corp., 238 F. Supp. 2d 683, 695 (D.N.J. 2002). 

Calculation of the “lodestar amount” is an appropriate 

method of determining whether a requested amount of attorney’s fees 

is reasonable. See Spectrum Produce Distrib., Inc., 2012 WL 2369367, 

at *3; see also Litton Indus., Inc. v. IMO Indus., Inc., 982 A.2d 420, 

441 (N.J. 2009). “The lodestar is the ‘number of hours reasonably 

expended on the litigation multiplied by a reasonable hourly rate.’”

Spectrum Produce Distrib., Inc., 2012 WL 2369367, at *3 (quoting 

Hensley v. Eckerhart, 461 U.S. 424 (1983)). The party seeking damages 

must provide evidence of a reasonable hourly rate “in line with those 

prevailing in the community for similar services by lawyers of 

reasonably comparable skill, experience, and reputation.” Blum v. 

Stenson, 465 U.S. 886, 896 n.11 (1984). The party seeking damages must 

also provide evidence that the amount of time spent on the matter was 

reasonable. Spectrum Produce Distrib., Inc., 2012 WL 2369367, at *5. 

 

Jersey Prompt Payment Act. N.J. Stat. Ann. § 2A:30A-2(c).
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“A request for fees must be accompanied by ‘fairly definite information 

as to hours devoted to various general activities, e.g., partial 

discovery, settlement negotiations, and the hours spent by various 

classes of attorneys.’” Teamsters Health & Welfare Fund of 

Philadelphia and Vicinity v. Dubin Paper Co., Civil No. 11–7137, 2012 

WL 3018062, at *5 (D.N.J. July 24, 2012) (quoting Evans v. Port Auth., 

273 F.3d 346, 361 (3d Cir. 2001)). The Court must use its discretion 

to determine whether the hours billed were “excessive, redundant, or 

otherwise unnecessary.” Maldonado v. Houstoun, 256 F.3d 181, 184 (3d 

Cir. 2001) (quoting Pub. Interest Research Grp. of N.J., Inc. v. 

Windall, 51 F.3d 1179, 1188 (3d Cir. 1995)). 

Here, Plaintiff submitted evidence of attorney’s fees by way 

of a Declaration of Sean E. Regan, Esq. certifying that Plaintiff has 

incurred $34,313.50 in attorney’s fees and costs, with rates of 

approximately $200 per hour and $300 per hour. Regan Decl. ¶ 11, (Doc. 

No. 19); see also Costa Aff. ¶ 10 (Doc. No. 20-1). Plaintiff also 

submitted billing summaries with the dates of each invoice, the total 

billed on each invoice, Plaintiff’s payments, and costs incurred. 

Regan Decl., 5-7 (Doc. No. 19). Plaintiff’s counsel has certified 

that the billing rates are reasonable and customary in Monmouth County, 

New Jersey where Plaintiff’s counsel is located. Regan Decl. ¶ 11 

(Doc. No. 19). However, Plaintiff fails to describe the activities 

and hours spent on the matter. Plaintiff does not provide the Court 

with a breakdown of how many hours were spent on each activity, nor 
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does Plaintiff even provide the Court with general descriptions of the 

work performed by Plaintiff’s attorneys. Therefore, the Court is 

unable to use its discretion to determine whether the hours spent were 

reasonable. For example, the Court is unsure whether Plaintiff seeks 

attorney’s fees for the time Plaintiff’s attorneys spent pursuing its 

claims against the other Defendants, APS Contracting Company and 

Fidelity & Deposit Co. of Maryland, who ultimately prevailed during 

arbitration. Additionally, Plaintiff did not describe each 

attorney’s experience or set forth evidence to show that the hourly 

rates for each attorney were appropriate. Because Plaintiff’s 

affidavit and supporting documentation leave doubt as to the 

reasonableness of the attorney’s fees sought, the Court is unable to 

award an amount of attorney’s fees at this time. Therefore, 

Plaintiff’s request for attorney’s fees is denied without prejudice. 

Plaintiff may submit an application for attorney’s fees within 

twenty-one days of the date of this Opinion and accompanying Order and 

Judgment in accordance with applicable case law and Rules of Court. 

IV. Conclusion

Based on the foregoing, and based on the Court’s Order dated 

February 11, 2013 granting default judgment to the Plaintiff on 

Plaintiff’s breach of contract and violation of the New Jersey Prompt 

Payment Act claims, the Court will enter judgment in Plaintiff’s favor 

against Defendant A.C.C. Construction, Limited Liability Company in 
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the amount of $84,786.12. An Order and Judgment consistent with this 

Opinion will be entered.

s/ Karen M. Williams 

KAREN M. WILLIAMS

United States Magistrate Judge

Dated: July 10, 2013