United States District Court, D. Massachusetts
LOUIS P. COTE, INC., Plaintiff,
DSA ENCORE, LLC Defendant.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
case involves the alleged failure of DSA Encore, LLC
(“Defendant”) to pay for services Louis P. Cote,
Inc. (“Plaintiff”) rendered in accordance with a
contract between the parties. On May 11, 2016, Plaintiff
filed the Complaint in this case. [ECF No. 1]. On August 15,
2016, a summons and complaint were served on Defendant at 50
Pocono Road, Brookfield, CT 06804. [ECF No. 4]. Defendant has
failed to plead or otherwise defend in this action and a
default has been entered. [ECF No. 6]. Plaintiff has now
moved for default judgment, requesting $78, 745.17 in
damages. [ECF No. 9].
entry of default “constitutes an admission of all facts
well-pleaded in the complaint.” Vazquez-Baldonado
v. Domenech, 792 F.Supp.2d 218, 221 (D.P.R. 2011)
(quoting Fed.R.Civ.P. 55(b)) (internal quotations and
citations omitted). Because Defendant has defaulted in this
case, it is “taken to have conceded the truth of the
factual allegations in the complaint as establishing the
grounds for liability.” In re The Home Restaurants,
Inc., 285 F.3d 111, 114 (1st Cir. 2002). On a motion for
a default judgment, however, it is appropriate to
independently “examine a plaintiff's complaint,
taking all well-pleaded factual allegations as true, to
determine whether it alleges a cause of action.”
Ramos-Falcon v. Autoridad de Energia Electrica, 301
F.3d 1, 2 (1st Cir. 2002); see also Finkel v.
Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (noting that
even when a defendant defaults, before the court enters
default judgment, it is “required to determine whether
the . . . allegations establish [the defendant's]
liability as a matter of law”). Assuming that the facts
alleged state a viable cause of action, the defendant's
liability will be established.
Complaint, the Plaintiff alleges as follows. On or about
September 18, 2015, Defendant entered into a Credit Agreement
with Plaintiff that included a provision providing for
interest at 2% per month on delinquent accounts. Compl.
¶¶ 3, 4. Defendant contracted with Plaintiff to (1)
dismantle, rig, and transport certain large generators and
appurtenant equipment (the “equipment”) from
Salem, Massachusetts to Marlborough, Massachusetts, Compl.
¶ 5; (2) dismantle certain cooling towers in Salem,
Massachusetts and to load them onto trucks supplied by
Defendant, Compl. ¶ 7; and (3) remove certain heat
exchangers and load them into dumpsters supplied by
Defendant, Compl. ¶ 8. Plaintiff alleges that it
obtained all the necessary permits, dismantled the equipment,
rigged it, loaded it, and transported it from Salem to
Marlborough, Compl. ¶ 6, seemingly in performance of the
services described in Paragraph 5 of the Complaint. Plaintiff
does not explicitly and separately allege that it performed
the services described in Paragraphs 7 or 8; however, it does
allege that the “total price for the materials, labor
and transportation of the equipment and the materials and
labor associate [sic] with dismantling the cooling towers and
loading the dismantled cooling towers onto trucks supplied by
DSA, and removing the heat exchangers and loading the heat
exchangers into dumpsters supplied by DSA was” $78,
318.00. Compl. ¶ 9. The Plaintiff then alleges that the
Defendant “failed and refused to pay Cote for the
services rendered.” Compl. ¶ 10 (emphasis
added). After adding interest, other finance charges, and
subtracting Defendant's one-time, partial payment on
February 16, 2016, Defendant owed Plaintiff $78, 745.17 at
the time the Complaint was filed. Compl. ¶ 13. Plaintiff
further alleges that the parties agreed to a payment plan of
$5, 000 per week that Defendant ultimately failed to meet.
Compl. ¶ 27-30.
in its Complaint, alleges four causes of action: breach of
contract, quantum meruit, fraud and deceit, and a violation
of M.G.L. c. 93A, §§ 2, 11. There is no information
regarding whether any contract between the parties contained
a choice-of-law provision, and thus this Court applies the
choice of law analysis of the forum state. See Reicher v.
Berkshire Life Ins. Co. of Am., 360 F.3d 1, 5 (1st Cir.
2004). “Massachusetts state courts apply ‘a
functional choice of law approach that responds to the
interests of the parties, the States involved, and the
interstate system as a whole.'” Id. Given
that at least the bulk of the contracted for services took
place in Massachusetts, the Court applies Massachusetts law.
Plaintiff has adequately pled breach of contract. Apart from
one payment made in February 2016, Defendant has not made any
payments towards the amount it owes Plaintiff for the
services Plaintiff allegedly contracted for with the
Defendant, and that Plaintiff ultimately rendered. To the
extent Plaintiff's argument for quantum meruit is based
on unjust enrichment, it is not available where there is an
adequately-pled breach of contract claim. See Santagate
v. Tower, 833 N.E.2d 171, 176 (Mass. App. Ct. 2005)
(“An equitable remedy for unjust enrichment is not
available to a party with an adequate remedy at law.”);
see also In re: Lupron Mktg. & Sales Practices
Litig., 295 F.Supp.2d 148, 182 (D. Mass. 2003)
(“Where a contract . . . govern[s] the parties'
relationship, the contract provides the measure of the
plaintiff's right and no action for unjust enrichment
lies.”). Accordingly, Count II of the Complaint is
dismissed without prejudice.
Plaintiff's motion for default judgment does not specify
what counts Plaintiff moves for default judgment on,
Plaintiff appears to request damages equal only to the
outstanding balance on Defendant's account. [ECF No. 9,
9-3]. Accordingly, the Court interprets the motion for
default judgment as requesting judgment only on the first
count for breach of contract (Count I). Even if the Court
were to assume that Plaintiff moves for default judgment on
all counts, Plaintiff has not adequately alleged
Defendant's liability as a matter of law on the remaining
counts. A simple breach of contract, without more, does not
establish a Chapter 93A violation. Monotype Imaging Inc.
v. Deluxe Corp., 883 F.Supp.2d 317, 323 (D. Mass. 2012)
(citing Madan v. Royal Indem. Co., 532 N.E.2d 1214
(Mass. App. Ct. 1989)). There must be a showing of bad faith,
and here, Plaintiff has not made sufficient factual
allegations to infer bad faith on the Defendant's part.
See id. Finally, to establish fraud and deceit,
Plaintiff must adequately allege that Defendant made “a
false representation of a material fact with knowledge of its
falsity for the purpose of inducing the plaintiff to act
thereon, and that the plaintiff relied upon the
representation as true and acted upon it to his
damage.” Learning Express, Inc. v. Ray-Matt
Enterprises, Inc., 74 F.Supp.2d 79, 84-85 (D. Mass.
1999) (quoting Slaney v. Westwood Auto, Inc., 322
N.E.2d 768, 779 (Mass. 1975). Plaintiff has made insufficient
factual allegations to infer fraud and deceit. Accordingly,
Counts III and IV of the Complaint are dismissed without
regard to damages, Fed.R.Civ.P. 55(b)(2) provides that the
court “may conduct hearings or make referrals . . .
when, to enter or effectuate judgment, it needs to (A)
conduct an accounting; (B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or (D)
investigate any other matter.” A hearing, however, is
not necessarily required, particularly where the facts
alleged in the pleadings, together with affidavits submitted
by the moving party, establish the amount of the default
judgment. See In re The Home Restaurants, Inc., 285
F.3d at 114 (holding that district court did not abuse its
discretion by entering default judgment without first holding
evidentiary hearing, where there was “no uncertainty
about the amounts at issue, ” the pleadings contained
“specific dollar figures, ” and the court
requested and received affidavits in support of the default
alleged in the Complaint, Plaintiff expended $78, 318.00
total on materials, labor, and transportation in connection
with contracts that Defendant entered into with Plaintiff.
Compl. ¶¶ 5-9. Interest and other finance charges
in the amount of $5, 452.67 accrued on Defendant's
account, Compl. ¶ 11, resulting in a total balance of
$83, 770.67, Compl. ¶ 12. Defendant made one payment to
Plaintiff in the amount of $5, 025.50, resulting in an
outstanding balance of $78, 745.17 at the time this suit was
filed. Compl. ¶ 13. John Cote, President of Louis P.
Cote, Inc., represents that, upon review of the records and
books of Louis P. Cote with respect to Defendant's
account, Defendant owes, including interest to date, $89,
032.54. Affidavit of John Cote [ECF No. 9-2 at ¶ 4].
Plaintiff's counsel represents that, to date, the costs
incurred have been $501.00. Affidavit of Counsel [ECF No. 9-1
at ¶¶ 9, 13]. Plaintiff requests $78, 745.17, which
equals the outstanding balance without interest consistent
with the Complaint and Affidavit of John Cote, plus costs and
0% prejudgment interest. Proposed Judgment [ECF No. 9-3].
Plaintiff's motion for default judgment [ECF No. 9] is
GRANTED on Count I of the Complaint. The remainder
of the motion for default judgment is DENIED to the
extent that it requests default judgment on Counts II-IV, and
the Court DISMISSES Counts II- IV without prejudice.
Upon application of Louis P. Cote, Inc. and affidavits
demonstrating that Defendant DSA Encore, LLC is not an infant
or incompetent person, Defendant is liable to Plaintiff for
damages under Count I as set forth herein, It is hereby
ordered, adjudged, and decreed that PLAINTIFF LOUIS P. COTE,
INC. recover from DEFENDANT DSA ENCORE, LLC damages in the
amount of $78, 745.17, plus costs in the amount of $501.00.
The total amount of the judgment is $79, 246.17, with
post-judgment interest as provided by law.
The post-judgment interest rate ...