Allied v. Coyne CV-93-062-M 11/29/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Allied Electronic Services, Inc. and Selected, Inc., Plaintiffs,

v. Civil No. 93-62-M

Robert K. Covne, Computer Controlled Television Services, Inc., Defendants.

O R D E R

This case comes before the court due to plaintiffs' failure

to obtain the appearance of new counsel on its behalf in

accordance with the order issued by the clerk dated November 8,

1995 (document no. 14).

A review of the record indicates that the defendants Robert

K. Coyne, and Computer Controlled Television Services, Inc. were

defaulted for failure to appear on April 21, 1993. Assessment of

damages was deferred until resolution of the claims against the

remaining defendants, "Doe Corporate Alter Egos 1 - 10."

On April 27, 1993, the court issued an order (document

no. 8) relative to the Doe defendants, granting plaintiffs until

October 30, 1993, or until the applicable statute of limitations

had lapsed, if earlier than October 30, 1993, to submit (i) a motion to amend its complaint, substituting named defendants for

the Doe Corporate Alter Ego defendants; or (ii) a memorandum

showing good cause why defendants Doe Corporate Alter Egos 1 - 1 0

should not be dismissed pursuant to Local Rule 21 (a) for want of

prosecution.

On November 17, 1993, the court entered an order (document

no. 9) noting that plaintiffs failed to file a motion to amend

its complaint on or before October 30, 1993, to substitute named

defendants for the "Doe" defendants, or a memorandum showing good

cause why the defendants "Doe Corporate Alter Egos 1 - 10" should

not be dismissed pursuant to Local Rule 21 (a) for want of

prosecution. Accordingly, the court dismissed plaintiffs'

complaint as it pertained to defendants Doe Corporate Alter Egos

1 - 10.

A damages hearing was apparently scheduled for December 14,

1993, at 2:00 p.m. However, then counsel to the plaintiffs filed

a motion to continue that damages hearing. The damages hearing

was rescheduled to January 27, 1994, at 2:00 p.m. before

Magistrate Judge Barry. An affidavit was submitted by the Chief

Executive Officer of plaintiff. Allied Electronic Services, Inc.

on January 27, 1994. On February 1, 1994, the Magistrate Judge

entered an order indicating that the damages hearing should be

2 indefinitely continued because the resolution of the cases

against the remaining defendants had not yet occurred (document

no. 12). However, the remaining defendants had previously been

dismissed, and, it appears that the damages hearing should have

been conducted.

On October 10, 1995, Attorney R. Peter Shapiro, apparently

in response to inguiries from the clerk's office, notified the

clerk that he had intended his previous withdrawal as counsel to

Allied Electronic Services, Inc. in other cases to also serve as

a withdrawal in this case. Accordingly, the court treated

Attorney Shapiro's letter as a withdrawal, and, on November 8,

1995, the clerk issued an order reguiring Allied Electronic

Services, Inc. and Selectel, Inc. to obtain new counsel and have

counsel file his or her appearance on or before November 22,

1995, thus bringing the matter full circle.

Given the defendants' default in this case, it would be

unjust to dismiss the case at this juncture based upon plaintiff

corporations' own failure to obtain new corporate counsel in the

short time allotted. Additionally, a review of the file

indicates that the information necessary to make a determination

of damages is present in the form of the affidavit of Arnold

3 Appell, Chief Executive Officer of plaintiff Allied Electronic

Services, Inc.

Accordingly, the court, having reviewed the affidavit of

damages assesses damages as follows. See Rule 55, Fed. R. Civ.

P. Plaintiffs have established reasonable contract damages in

the amount of $15,138.50 as the amount due for eguipment

delivered to the defendants. In addition, research and

development costs expended, in the amount of $48,000.00

constitute damages reasonably related to the defendants' breach

of contract.

Plaintiffs also seek damages for "loss of profit for five

years" in the amount of $300,000.00. Plaintiffs generally assert

that the new business venture memorialized in the contract would

have been profitable in a specified amount but for the

defendants' breach of contract and other wrongful conduct. Lost

profits of this kind, however, are often speculative in that they

"depend upon how a variety of variables affecting a stream of

revenues and expenses would have played out over time, if the

wrongdoing had not occurred." Bezanson v. Fleet Bank - N H ,

(1st Cir. 1994). Thus, lost profits of this type

must be shown with "reasonable certainty," and cannot be

speculative. Eastern Mountain Platform Tennis, Inc. v. Sherwin-

4 Williams C o .,

, 502-03 (1st Cir. 1994) (applying New

Hampshire law). Evidence of lost profits must "provide enough

information under the circumstances to permit the fact finder to

reach a reasonably certain determination of the amount of gains

prevented." Independent Mechanical Contractors, Inc. v. Gordon

T. Burke and Sons, Inc.,

,

(1993); see also Great Lakes Aircraft Co. v. City of Claremont,

,

(N.H. 1992); Hvdraform Products Corp.

v. American Steel,

,

(N.H. 1985).

Mr. Appell's affidavit states that if this case proceeded to

trial plaintiffs would produce evidence establishing the facts

described in the affidavit.1 Relying upon that information, the

court finds that the claim for lost profits is too speculative to

be recoverable and does not award damages based upon anticipated

lost profits.

Accordingly, judgment shall be entered forthwith in favor of

the plaintiffs against the defendants Robert K. Coyne, and

1 If either plaintiff believes other or different evidence could be marshalled at a hearing, they may file a motion to amend the judgment within thirty (30) days of entry of judgment seeking a hearing and specifying the nature of the evidence they desire to present. Of course, prior to or contemporaneously with filing such a motion, new counsel of record must file an appearance on behalf of the plaintiff corporations (see order dated November 8, 1995) .

5 Computer Controlled Television Services, Inc., in the amount of

$63,138.50, plus prejudgment interests and costs.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 29, 1995

cc: Arnold Appell, Chief Executive Officer Allied Electronic Services, Inc. Selectel, Inc. Robert K. Coyne Computer Controlled Television Service, Inc.

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