GILLESPIE v. ACME MARKETS, INC. et al, No. 1:2014cv07779 - Document 40 (D.N.J. 2019)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 3/14/2019. (rtm, )
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GILLESPIE v. ACME MARKETS, INC. et al Doc. 40 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _________________ DAWN GILLESPIE, ____ : : Plaintiff, : : v. : : ACME MARKETS, INC. et al., : : Defendants. : _______________________ : H o n . Jo s e ph H . Ro d rigu e z Civil Action No. 14-7779 Op in io n This m atter comes before the Court on a m otion to enforce an agreement, between counsel for the parties, which sets forth a schedule for the paym ent of the award of attorneys’ fees. On J anuary 30 , 20 17, the Court awarded attorneys’ fees in favor of Defendants’ attorney Richard De Fortuna in the am ount of $ 20 , 952.20 . [Dkt. No. 20 ] Plaintiff’s counsel, Christopher Manganello, and Mr. De Fortuna agreed to a payment schedule for the rem itter of the award of attorney’s fees and m emorialized that agreement in a J oint Schedule for Paym ent of Award of Counsel Fees (hereinafter “J oint Schedule”) filed with the Court on March 6, 20 17. [Dkt. No. 37]. Mr. De Fortuna states that Mr. Manganello has failed to pay under the terms of the agreement and m oves for an Order holding that Plaintiff’s 1 Dockets.Justia.com counsel Mr. Manganello is in breach of the fee agreem ent and dem ands a judgm ent for the rem ainder of the unpaid balance of the award of attorneys’ fees. In support of his motion, De Fortuna subm itted a declaration on J uly 29, 20 18, which sets forth Mr. Manganello’s delinquencies and breach of his obligations under the term s of the J oint Schedule. [Dkt. No. 38]. Mr. Manganello’s response to the m otion was due on August 21, 20 18. On September 4, 20 18, Mr. Manganello filed a request for an extension of tim e to oppose the m otion. [Dkt. No. 39]. The Court did not rule on Mr. Manganello’s untim ely request and notes that in the m any m onths which have followed his request, Mr. Manganello has not subm itted any response to the m otion. As a result, the Court considers the m otion unopposed. For the reasons stated below, Mr. De Fortuna’s m otion for breach of the J oint Schedule is granted. I. Backgro u n d In his prosecution of the underlying labor dispute in this case, Mr. Manganello m ade num erous requests for extensions of time, subm itted m ultiple filings after their deadlines had expired, and continued to pursue this action despite the fact that his client was able to return to Acm e when she produced a doctor’s note clearing her for em ploym ent. [Dkt. No. 8-10 , 2 18]. The Court granted sum m ary judgm ent in favor of Defendants and, because of the dilatory tactics and duplicitous handling of the case by Mr. Manganello, invited Acm e to subm it a m otion for attorney’s fees. During oral argument on the m otion for attorneys’ fees, the Court granted the m otion and ordered the parties to subm it a fee payment schedule to the Court [Dkt. No. 20 , Order, J an. 30 , 20 17]. Mr. Manganello and Mr. De Fortuna filed the executed J oint Schedule 1 on February 26, 20 18. [Dkt. No. 37]. The J oint Schedule requires Mr. Manganello to rem it the award of $ 20 ,952.20 to Mr. De Fortuna in twenty m onthly paym ents of $ 10 0 0 and one final payment of $ 952.20 . The first paym ent was due on March 15, 20 18, with every paym ent thereafter due the on 15 th day of each m onth. De Fortuna Decl., J oint Schedule, para. 1, 2. Failure to m ake a tim ely payment constitutes a default and enables Mr. De Fortuna to im mediately m ove for a judgm ent in the amount of “the rem aining unpaid am ount of the judgment[.]” Id. at para. 4. In addition, the J oint Schedule perm its Mr. De Fortuna to seek any and all legal fees and expenses resulting from “any further efforts to enforce payment of the Court’s initial J anuary 30 , 20 17 Order, this joint schedule, or any 1 Per the January 30, 2017 Order awarding attorneys’ fees and paragraph 7 of the Joint Schedule, the Court retained jurisdiction over any issues arising out of the full satisfaction its Order awarding fees and costs. 3 subsequent order of the Court issued in connection with or furtherance of . . . Manganello’s adherence to, com pliance with, or default of this joint schedule.” Id., para. 5. According to Mr. De Fortuna, Mr. Manganello failed to m ake the first payment by March 15, 20 18. Declaration of Richard J . De Fortuna, para. 8. Mr. De Fortuna declares that he received a paym ent of $ 10 0 0 on or about March 22, 20 18 and also received a paym ent of $ 10 0 0 for the m onth of J une 20 18. Id. at para. 9, 12. However, Mr. De Fortuna has not received a payment from Mr. Manganello for the m onths of April 20 18 , May 20 18, and all of the m onths following J uly 15, 20 18. Id., para. 10 , 13-14. For these reasons, Mr. De Fortuna argues that Mr. Manganello is in breach of the term s of the J oint Schedule and he seeks entry of judgm ent in the am ount of $ 18,952.20 , plus post-judgm ent interest and costs. II. An alys is The J oint Schedule provides an agreed upon tim etable for the payment of the award of attorney’s fees in regular, m onthly installm ents. J oint Schedule, para. 4. Late payments trigger default and result in the “rem aining unpaid am ount of the judgm ent [becom ing] im m ediately due and owing in its entirety as of the date of the default.” Id., para. 4. The J oint 4 Schedule also provides that the breaching party shall pay “all legal fees and expenses” incurred the effort to enforce the J oint Schedule. Id., para. 5. Mr. Manganello has subm itted no justification for his failure to honor the J oint Schedule. The Court accepts Mr. De Fortuna’s Declaration and finds that Mr. Manganello is in breach of the J oint Schedule. As a result, the Court will enter judgm ent against Mr. Manganello for the im m ediate payments of the unpaid balance in the am ount of $ 18,952.20 , plus postjudgm ent interest dating back to the Court’s initial J anuary 30 , 20 17 Order. J oint Agreement para. 4, 5. In addition, Mr. De Fortuna shall subm it to the Court an affidavit detailing the fees and costs associated with present m otion and an Order granting an award in that am ount. J oint Schedule, para. 5. III. Co n clu s io n For the reasons stated herein, Richard De Fortuna’s m otion for default and enforcem ent of the J oint Schedule is granted. An appropriate Order shall issue. Dated: March 14, 20 19 _ s/ J oseph H. Rodriguez_ _ _ _ _ _ _ _ _ Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 5
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