UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Equipment East, LLC

v. Civil No. 20-cv-274-JD Opinion No.

Corbell Development, LLC, and Eyecor Const., LLC

O R D E R

Plaintiff Equipment East, LLC, filed a renewed motion (doc.

no. 25) for default judgment against defendants Corbell

Development, LLC, and Eyecor Construction, LLC. Neither Corbell

nor Eyecor responded.

Standard of Review

After default has been entered against a defendant and when

the amount of damages is not a sum certain, the plaintiff must

apply to the court for a default judgment. Fed. R. Civ. P.

55(b)(2). By defaulting, a defendant concedes the truth of the

plaintiff’s allegations as to liability but does not admit the

amount of damages claimed. KPS & Assocs., Inc. v. Designs by

FMC, Inc.,

, 19 (1st Cir. 2003); IDEXX Distribution

Inc. v. Daniel A. Lauridia DVM PC,

, at *1 (D. Me.

Jan. 17, 2020). Despite a defendant’s concession as to the

truth of the plaintiff’s allegations, the court must review the complaint to determine that jurisdiction exists and that the

admitted allegations state a cognizable claim. In re The Home

Restaurants, Inc.,

(1st Cir. 2002); see also

Inrepidus, LLC v. Bivins,

, at *4-*5 (S.D.N.Y.

Sept. 16, 2019). The plaintiff must prove the amount of damages

it claims, and the court may hold a hearing on damages if

necessary. Fed. R. Civ. P. 55(b)(2). A hearing is not

required, however, if the plaintiff provides sufficient proof of

the amount of damages through evidence, including affidavits.

The Home Restaurants,

.

Background

A. Complaint

Equipment East filed this action on February 21, 2020, to

recover damages resulting from Eyecor’s and Corbell’s failure to

pay for construction equipment rentals, service on construction

equipment, and parts for construction equipment.

The complaint contains six counts:

• Count I, breach of contract against Eyecor for failure to pay for rental of construction equipment;

• Count II, unjust enrichment against Corbell for failure to pay for construction equipment rented by Eyecor but used by Corbell;

• Count III, breach of contract against Eyecor for failure to pay for parts and service of construction equipment;

2 • Count IV, quantum meruit against Eyecor and Corbell for their failure to pay for service and repair work on the construction equipment;

• Count V, unjust enrichment against Eyecor for failure to pay for parts;

• and Count VI, violation of RSA 544-B:1 against Corbell and Eyecor.

Neither Eyecor nor Corbell responded to the complaint. The

Clerk of Court entered default against Eyecor and Corbell on

April 17, 2020. Afterward, Earney Mayo, a “Member/Manager” of

Eyecor and Corbell, attempted to file a motion to vacate the

entry of default. Doc. 12. The court, however, rejected the

motion because it was filed pro se rather than through counsel,

and corporate entities must be represented by counsel. LR

83.6(c). The court nevertheless provided Corbell and Eyecor

thirty days to obtain counsel and enter an appearance. The time

expired and neither Corbell nor Eyecor appeared with counsel.

B. First Motion for Default Judgment

Equipment East filed a motion for default judgment. Doc.

21. Equipment East argued that it was entitled to a judgment

against Eyecor Construction for $364,533.57 and against Corbell

for $330,511.39. Equipment East’s claim included $7,195.13 for

legal fees and $1,034.00 for costs.

3 The court denied Equipment East’s motion for default

judgment, without prejudice, because the motion lacked the

necessary analysis of the claims to support entry of a default

judgment. The court also noted that “[i]ssues are apparent with

respect to the amount of damages Equipment East is seeking and

the viability of its claims.” Doc. 24 at 6. For example,

Equipment East appeared to count the same damages twice,

requesting a total damages award of $695,044.96, which was not

supported by the allegations in the complaint. Additionally,

the court noted a concern that Equipment East had not shown

that, as to its breach of contract claims, valid agreements

between Equipment East and Eyecor or Corbell existed. The court

denied Equipment East’s motion, without prejudice, granting

Equipment East leave to file a renewed motion for default

judgment by August 11, 2020.

C. Renewed Motion for Default Judgment

Equipment East filed a renewed motion for default judgment

within the time period specified by the court. Equipment East

supports its renewed motion for default judgment with the

affidavits of Giovanni Albanese, Gilda Albanese, and Attorney

Mary Ellen MacDonald and attached several exhibits to each

affidavit to further support or provide detail for the

statements in the affidavits. The renewed motion for default

4 judgment discusses each claim and the damages to which Equipment

East asserts it is entitled for each claim.

D. Facts

As noted, because they have failed to appear in this

action, Eyecor and Corbell admit all of Equipment East’s factual

allegations as to liability. Equipment East, whose place of

business is in Massachusetts, sells and rents construction

equipment, provides repairs and servicing for construction

equipment, and sells parts for construction equipment.

Equipment East avers that Eyecor and Corbell were in the

construction business.

1. Equipment Rentals

In 2018 and 2019, Eyecor rented various pieces of

construction equipment from Equipment East. Equipment East sent

Eyecor a rental agreement with attached terms and conditions as

well as recurring invoices for the equipment rentals. Each

rental agreement contains a line for a signature by the customer

(i.e., Eyecor) and a line for a signature by Equipment East.

Only one agreement, for a Bobcat T650, was signed by an Eyecor

representative (Earney Mayo), and no agreements were signed by

an Equipment East representative.

5 The rental agreement contains attached terms and conditions

and states that the terms and conditions are “in full force and

effect from the time the lessor’s equipment is accepted by the

lessee.” E.g., doc. 27-1 at 3; doc. 27-2 at 3; doc. 27-3 at 3.

One term selects the law of Equipment East’s place of business

from where the equipment was delivered (Massachusetts) as

applicable to the leases. Another term states that “[i]nvoices

beyond the Net 30 Day terms are subject to 1.5% monthly or 18%

annual service fee.” E.g., doc. 27-1 at 5; doc. 27-2 at 5; doc.

27-3 at 5. The agreements also state that the “Lessee shall be

liable for all reasonable costs expenses [sic] incurred,

including attorney’s fees, in the collection of any outstanding

monies.” E.g., doc. 27-1 at 5; doc. 27-2 at 5; doc. 27-3 at 5.

Each recurring invoice contains details about the equipment

to be rented, the duration of the rental period, and the amount

due for each rental period. As one example, the first unpaid

invoice for a Doosan DX85 excavator states that the rental shall

be between June 12, 2018, and July 10, 2018, and that the rate

for the rental during that period is $4,400.00. Doc. 27-1 at

14.

Eyecor accepted delivery of all the equipment or took

possession of all the equipment detailed in the agreements and

6 invoices and used it for the duration specified in the invoices.

Eyecor, however, failed to pay for the equipment.1

2. Equipment Service and Parts

In 2018 and 2019, Equipment East performed repair services

on equipment owned by Eyecor. Equipment East sent Eyecor

invoices for the repair services. Additionally, Equipment East

performed repairs of equipment rented from it by Eyecor that had

been damaged during the rental period. Equipment East sent

technicians to New Hampshire to perform the repairs. Eyecor

failed to pay $4,111.39 of the amount invoiced for the repairs

made by Equipment East.

Additionally, in 2018 and 2019, Eyecor purchased parts from

Equipment East’s retail store in Bow, New Hampshire. The parts

were purchased on credit from Equipment East. The parts were

invoiced by Equipment East, but Eyecor failed to pay $29,875.89

of the amounts invoiced.

3. Checks

On May 17, 2019, Corbell remitted a check to Equipment East

for $120,000.00. The $120,000.00 check was returned to

1 Some invoices note that Eyecor made payments toward them or that credit was received for an early return. The paid or credited amounts were deducted from the balance owed by Eyecor.

7 Equipment East for insufficient funds. Equipment East’s bank

charged it a fee of $7.50 for the returned check.

Discussion

Equipment East renews its motion for a default judgment.

Neither Eyecor nor Corbell filed a response.

A. Jurisdiction

The court found that it had subject matter jurisdiction

over the case and personal jurisdiction over the defendants in

its order denying Equipment East’s motion for a default judgment

without prejudice. Doc. 24 at 5-6. The court adopts the same

finding here.

B. Claims and Liability for Damages

Equipment East moves for default judgment as to Counts I,

III, IV (against Eyecor only), V, and VI (against Corbell only).

Equipment East moves to voluntarily dismiss without prejudice

the following claims: Count II against Corbell, Count IV against

Corbell, and Count VI against Eyecor. See Fed. R. Civ. P.

41(a)(2).

8 1. Count I (Breach of Contract against Eyecor)

Count I involves Eyecor’s failure to pay for the

construction equipment it rented from Equipment East. Equipment

East asks for damages including the unpaid sums, contractual

interest, attorneys’ fees, and costs.

a. Choice of Law

Equipment East asserts that Eyecor breached rental

agreements which contain a provision selecting the law of

Equipment East’s place of business from which the equipment was

delivered, which is Massachusetts. In a diversity action, the

forum state’s substantive law governs, including its choice-of-

law rules. Coldwell Banker Real Estate, LLC v. Brian Moses

Realty, Inc.,

(D.N.H. 2010). “New

Hampshire law usually will uphold a contract’s selection of a

forum’s law as long as ‘the contract bears any significant

relationship to that jurisdiction.’” Hobin v. Coldwell Banker

Residential Affiliates., Inc.,

(2000). Here,

the rental agreements bear a significant relationship to

Massachusetts, which is Equipment East’s place of business from

which the equipment Eyecor rented was delivered or picked up.

Accordingly, the court will apply Massachusetts law to the

issues involving the rental agreements. See

9 b. Sufficiency of Allegations and Evidence of Written Agreements

In Count I, Equipment East alleges that it agreed to rent

construction equipment to Eyecor and that Eyecor promised to pay

for the equipment. Equipment East argues that the invoices and

rental agreements contain the written terms of the contracts,

which include provisions for interest, attorneys’ fees, and

costs. Although the rental agreements are unsigned, Equipment

East contends that Eyecor implicitly accepted the written rental

agreements by picking up or using the equipment after receiving

the agreements and breached the agreements by failing to pay as

promised. Alternatively, Equipment East asserts that, if the

written terms of the rental agreements are not enforceable,

Eyecor breached implied oral contracts.2

“To prevail on a claim for breach of contract, a plaintiff

must demonstrate that there was an agreement between the

parties; the agreement was supported by consideration; the

plaintiff was ready, willing, and able to perform his or her

part of the contract; the defendant committed a breach of the

contract; and the plaintiff suffered harm as a result.” See

Bulwer v. Mount Auburn Hosp.,

(2016). If

Eyecor accepted the written rental agreements despite not

2 If the agreements were oral, then Equipment East asserts that it is entitled only to damages for the cost of the rentals and not interest, attorneys’ fees, or costs.

10 signing them, then Equipment East’s allegations support a

cognizable claim for breach of contract and an award including

interest, attorneys’ fees, and costs.

Acceptance of a written agreement can be established by

evidence that the offeree commenced performance of the

contractual terms after receiving notice of the terms and having

a reasonable opportunity to reject the terms. McGurn v. Bell

Microproducts, Inc.,

(1st Cir. 2002) (applying

Massachusetts law and concluding that “silence in response to an

offer may constitute an acceptance if an offeree who takes the

benefit of offered services knew or had reason to know of the

existence of the offer, and had a reasonable opportunity to

reject it.”); see also Restatement (Second) of Contracts § 32

(stating the default rule that an offer permits acceptance by

either a promise to perform or actual performance). The

evidence submitted by Equipment East shows that Equipment East

sent the rental agreements to Eyecor. After receiving the

rental agreements, Eyecor took possession of the equipment

detailed in the agreements and associated invoices.

Furthermore, the agreements themselves state that they are “in

full force and effect from the time the lessor’s equipment is

accepted by the lessee.” E.g., doc. 27-1 at 3. For those

reasons, Eyecor accepted the written terms of the rental

11 agreements, and their terms are applicable to the determination

of the amount of damages owed by Eyecor.

c. Amount of Damages, Attorneys’ Fees, and Costs

Having stated a cognizable claim for breach of contract in

its complaint and established with evidence that the written

terms of the rental agreements govern, Equipment East must prove

the amount of damages it claims. Fed. R. Civ. P. 55(b)(2). For

Count I, Equipment East claims damages for the unpaid equipment

rentals and interest on those sums, as well as attorneys’ fees,

and costs.

i. Unpaid Rental Amounts and Interest

Equipment East submits that, as to Count I, it is entitled

to damages of $265,508.05 for the unpaid equipment rentals and

contractual interest of $68,921.73. “In order to recover more

than nominal damages for breach of contract, a plaintiff must

prove by a preponderance of the evidence that the breach

actually and proximately caused a loss.” Exeter Theatre Corp.

v. T.G.I. Friday's, Inc.,

,

, at *1 (Jan. 28, 2011). “Once a plaintiff clears the

initial threshold of proving causation, he then bears the second

burden of proving the amount or extent of his damages with

reasonable certainty.”

(quotation marks omitted). With one

12 exception, Equipment East has shown the amount of its damages

with “reasonable certainty.” See

Equipment East and Eyecor agreed for the rental of several

pieces of construction equipment in exchange for the payments

specified by the invoices attached to Equipment East’s motion

for a default judgment. Equipment East’s head of operations,

Giovanni Albanese, stated in his affidavit that Eyecor failed to

pay $265,508.05 of the charges evidenced by the invoices. Each

unpaid invoice was provided with Albanese’s affidavit and the

amounts stated in those invoices, less the partial sums that

Equipment East acknowledges were paid, show that amount is owed.

Therefore, Equipment East has proved damages of $265,508.05 for

unpaid invoices.

The invoices also include a term setting an eighteen-

percent interest rate on unpaid amounts. Equipment East asserts

that the total interest owed to it under the invoices is

$68,921.73. The court, however, finds that Equipment East has

only proved interest in the amount of $68,884.80, which is

consistent with a simple annual interest rate of eighteen

percent accruing over the time periods for which the unpaid sums

have been overdue.

The discrepancy between Equipment East’s claim and the

court’s finding results from Equipment East’s exclusion from its

interest calculation of the full $150.00 credit for the June 22,

13 2018, invoice for the Bobcat T650. See doc. 27-3 at 13, 17, 25.

For the June 22, 2018, invoice, Equipment East only deducted

$50.00 of the $150.00 credit from its interest calculation. See

id. at 25. Therefore, Equipment East has proved damages of

$68,884.80 for contractual interest in addition to its damages

for unpaid invoices.

ii. Attorneys’ Fees and Costs

Under the rental agreements, Equipment East is entitled to

reasonable costs or expenses for collection of “outstanding

monies.” Doc. 27-1 at 5. Such costs and expenses include

attorneys’ fees. Id. Contract provisions providing for the

recovery of attorneys’ fees are enforceable under Massachusetts

law. Hannon v. Original Gunite Aquatech Pools, Inc.,

(1982). The court must ascertain which attorneys’ fees

and costs are attributable to the collection of “outstanding

monies” and whether they are reasonable. See

“What constitutes a reasonable fee is a question that is

committed to the sound discretion of the judge.” Berman v.

Linnane,

(2001). The court considers

“several factors, including ‘the nature of the case and the

issues presented, the time and labor required, the amount of

damages involved, the result obtained, the experience,

reputation and ability of the attorney, the usual price charged

14 for similar services by other attorneys in the same area, and

the amount of awards in similar cases.’”

at 303 (quoting

Linthicum v. Archambault,

(1979)).

In her affidavit, Attorney MacDonald states that the total

attorneys’ fees accrued by Equipment East in pursuing this

action are $14,709.00. Equipment East, however, is only seeking

fifty percent ($7,354.50) of the legal fees because the fees are

only recoverable as to the breach of the equipment rental

contracts. Having considered Attorney MacDonald’s affidavit,

the exhibits attached to her affidavit, and the work that was

performed on this case, the court finds that sum advanced by

Equipment East and Attorney MacDonald is reasonable, less one

half of the $324.50 ($162.75)3 charged for preparing the June 11,

2020, motion for default judgment. The court denied the June

11, 2020, motion for default judgment without prejudice because

it was insufficiently developed, which resulted in unnecessary

and repetitive work. It is unreasonable to charge the fees for

that motion against Eyecor. Equipment East is entitled to

reasonable attorneys’ fees in the amount of $7,191.75.

As to costs, Equipment East is seeking $400.00, which is

the court’s filing fee, and one half of the service fees, which

3 Only one half the charge is deducted because Equipment East only requested one half of its attorneys’ fees.

15 is $239.97. The total costs claimed are $639.97, which is a

reasonable sum.

For those reasons, the court grants the motion for a

default judgment as to Count I. Damages are awarded in the

amount of $334,392.85, which consists of $265,508.05 for the

unpaid invoices and $68,884.80 in contractual interest.

Additionally, attorneys’ fees are awarded in the amount of

$7,191.75 and costs are awarded in the amount of $639.97.

2. Count III (breach of contract against Eyecor)

In Count III, Equipment East alleges that Eyecor breached

contractual terms by failing to pay for construction equipment

parts it purchased in 2018 and 2019. Equipment East also

alleges that, in 2018 and 2019, it performed repair services on

equipment owned or rented by Eyecor and that Eyecor did not pay

for the services. The allegations in the complaint state a

valid claim for breach of contract based on Eyecor’s failure to

fulfill its promises to pay Equipment East for construction

equipment parts Equipment East provided and Eyecor’s failure to

fulfill promises to pay for repair services performed by

Equipment East. See Wilcox Indus. Corp. v. Hansen,

(D.N.H. 2012) (“In order to state a breach of

contract claim under New Hampshire law, [the plaintiff] must

allege sufficient facts to show (1) that a valid, binding

16 contract existed between the parties, and (2) that [the

defendant] breached the terms of the contract.”); Harrison v.

Watson,

(1976) (“A contract may be established

by spoken or written words or by acts or conduct . . . .”).4

As in Count I, Equipment East proves the amount of its

damages through affidavits and accompanying invoices. Based on

that evidence, Equipment East has established damages in the

amount of $29,875.89, which is the sum of the agreed upon but

unpaid amounts for parts as evidenced by the invoices and the

affidavit of Giovanni Albanese. As to the repair services,

Equipment East has, by similar evidence, established that it is

entitled to damages of $4,111.39. The total amount of damages

Equipment East has proved for Count III is therefore $33,987.28.

C. Counts IV and V (quantum meruit and unjust enrichment)

In its renewed motion for default judgment, Equipment East

asserts that “[i]f the Court declines to enter judgment in

4 As to Count III, the law of Massachusetts on the subject of breach of an implied-in-fact contract yields the same result as the law of New Hampshire. See Bulwer,

; Katz v. Pershing, LLC,

(D. Mass. 2011) (“An implied-in-fact contract comes into being when, not withstanding the absence of a written or verbal agreement, the conduct or relations of the parties imply the existence of a contract.”). Therefore, there is no need to make a formal choice of law as to Count III. See Foisie v. Worcester Polytechnic Inst.,

(1st Cir. 2020) (“[A] choice-of-law determination is obligatory only if a material conflict exists between the laws of the interested states.”).

17 Equipment East’s favor on Count III . . . for failure to pay for

the repair services, Equipment East would be entitled to

judgment on an alternate theory of quantum meruit.” Doc. 26 at

12; see also R.J. Berke & Co., Inc. v. J.P. Griffin, Inc.,

(1976) (“Quantum meruit is a restitutionary remedy

intended for use by contracting parties who are in material

breach and thus unable to sue ‘on contract.’”). Similarly, as

to Count V, unjust enrichment, Equipment East states that the

claim is an “alternate theory” that it is only entitled to

judgment on if the court finds its breach of contract claim in

Count III non-cognizable. Doc. 26 at 11; Axenics, Inc. v.

Turner Constr., Co.,

(2013) (“It is a well-

established principle that the court cannot allow recovery under

a theory of unjust enrichment when there is a valid, express

contract covering the subject matter at hand.”). Because the

court will enter judgment in Equipment East’s favor on Count III

as to Eyecor’s failure to pay for equipment parts and repair

services, the court does not address Equipment East’s alternate

theories of unjust enrichment and quantum meruit.

D. Count VI (RSA 544-B:1)

Equipment East alleged in the complaint that Corbell

bounced a check or stopped payment on a check in violation of

18 RSA 544-B:1.5 “In any action against a person who makes, issues,

or draws any check, draft or order for the payment of money

which has been dishonored for lack of funds or credit to pay the

same, or because the maker, issuer, or drawer has no account

with the drawee, the holder may recover from the maker, issuer,

or drawer the amount of the check, draft, or order, plus court

costs, service costs, and collection costs incurred by the

holder.” RSA 544-B:1.

To recover under RSA 544-B:1, the plaintiff must have

provided notice of nonpayment under RSA 544-B:2 and the

defendant must have failed to make payment within ten days of

receiving the notice. “Such notice in writing shall be

conclusively presumed to have been given when properly deposited

in the United States mails, postage prepaid, by certified or

registered mail, return receipt requested, and addressed to such

maker, drawer, or issuer at his address as it appears on the

check, draft, or order or at his last known address.” RSA 544-

B:2.

Equipment East alleges that Corbell issued a check that was

either stopped or returned for insufficient funds. Equipment

Count VI names both Eyecor and Corbell as defendants, but 5

in its renewed motion for default judgment, Equipment East states that it wishes to dismiss Count VI as against Eyecor without prejudice.

19 East alleges that it provided notice of nonpayment to Corbell by

certified mail. It attached the notice and certified mail

receipt to the complaint. Equipment East alleges that payment

was not made after the notice was received by Corbell.

Therefore, the complaint states a cognizable claim for relief

under RSA 544-B:1.

In its motion for default judgment, Equipment East asserts

that the check from Corbell was for $120,000.00. It supports

that assertion with the affidavit of Giovanni Albanese and the

check itself. Albanese also noted his belief that the

$120,000.00 check from Corbell was intended to be partial

payment of the amount Eyecor owed to Equipment East for rentals,

parts, or repairs.

As to fees and costs, Equipment East asserts that it

incurred a $7.50 fee from its bank for the returned check and

that it incurred a $7.60 cost for mailing the certified mail

notice pursuant to RSA 544-B:2. In her affidavit, Attorney

MacDonald confirms that postage for the certified mail notice

sent to Corbell cost $7.60. Given the evidence cited above,

Equipment East has established damages against Corbell for

$120,000.00 for the amount of the check and $15.10 for costs

incurred.

Giovanni Albanese, on behalf of Equipment East, states in

his affidavit that the $120,000.00 check from Corbell was

20 intended to pay some of what Eyecor owed to Equipment East for

rentals, parts, and service. Because the check was returned for

insufficient funds and was not paid, that amount remains

outstanding as part of the damages owed by Eyecor in Counts I

and III. It is also part of what Corbell owes to Equipment East

under RSA 544-B:1 in Count VI.

Equipment East can only recover that amount once. Eyecor

is liable for all of the damages awarded in Counts I and III,

and Corbell is liable for all of the damages awarded in Count

VI, except that any amount that either defendant pays will

offset the $120,000.00 that they owe jointly. Therefore, any

payments made by Eyecor or Corbell to Equipment East for the

damages awarded in this case first will be offset against the

$120,000.00 that they owe jointly until that amount is

satisfied. Then, each will owe the remainder of the damages

awarded separately.

Conclusion

Equipment East’s motion for default judgment (doc. no. 25)

is granted. As to Count I, Equipment East is awarded damages

against Eyecor in the amount of $334,392.85. Additionally, as

to Count I, Equipment East is entitled to attorneys’ fees in the

amount of $7,191.75 and costs in the amount of $639.97. Count

II is dismissed without prejudice.

21 As to Count III, Equipment East is awarded damages against

Eyecor in the amount of $33,987.28. Counts IV and V are

dismissed. As to Count IV against Corbell, the dismissal is

without prejudice.

As to Count VI, Equipment East is awarded damages against

Corbell Development, LLC, in the amount of $120,000.00 and costs

of $15.10. Count VI is dismissed as to Eyecor, without

prejudice.

As stated in the order, Eyecor is liable for all of the

damages awarded in Counts I and III, and Corbell is liable for

all of the damages awarded in Count VI, except that any amount

that either defendant pays will offset the $120,000.00 that they

owe jointly. Any payments made by Eyecor or Corbell to

Equipment East for the damages awarded in this case first will

be offset against the $120,000.00 that they owe jointly until

that amount is satisfied.

All claims in this case having been resolved, the clerk of

court shall enter judgment against Eyecor and Corbell in accord

with this order and close the case.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

September 16, 2020 cc: Counsel of Record

22