UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Reliant Life Sciences, LLC

v. Civil No. 22-cv-137-SE Opinion No.

AGC Biologics, Inc. and Daigle Computer Systems, Inc.

ORDER

New Hampshire’s Consumer Protection Act (“CPA”) authorizes private actions to

recover liquidated damages of $1,000 or “actual damages,” whichever is greater, for a violation

of the statute. N.H. Rev. Stat. Ann. (“RSA”) § 358-A:10, I. The CPA also provides for treble

damages when the violation is “willful or knowing.” Id. Plaintiff Reliant Life Sciences, LLC

(“Reliant”) has filed a renewed motion for default judgment on its CPA claim against Daigle

Computer Systems, Inc. (“Daigle”) seeking trebled, actual damages of $269,765.76. That sum is

derived from Reliant’s calculation of its lost profits due to Daigle’s breach of its subcontractor

agreement with Reliant, under which Daigle agreed to consult for one of Reliant’s clients.

The court denies Reliant’s motion in part, as it has not proven its actual damages under

the CPA. Instead, the court awards Reliant $35,000 in liquidated damages according to the

contract between it and Daigle, as well as $1,000 in liquidated damages provided by the CPA.

The CPA damage award is trebled by the court’s finding that Daigle acted willfully and

knowingly. The court also awards Reliant additional attorneys’ fees.1

1 The court previously adopted the Report and Recommendation approving Reliant’s attorneys’ fees and costs, doc. no. 23, but Reliant has incurred additional fees and costs since that time. As explained below, the court finds those amounts to be reasonable, and they are owed to Reliant under both the CPA and its subcontractor agreement with Daigle. See doc. no. 20 at 17 (R&R finding the same). Background

On July 31, 2023, the court acted on the Report and Recommendation of Magistrate

Judge Andrea K. Johnstone and granted Reliant’s motion for default judgment on its claims

against Daigle for breach of contract and a violation of the CPA. The court also awarded Reliant

its attorneys’ fees and costs and dismissed the remaining claims against Daigle as moot.

However, after receiving supplemental briefing from Reliant on the issue of damages, the court

did not approve the recommended award of $105,000, as it relied on the mistaken premise that

RSA 358-A:10, I authorizes trebling the liquidated damages provided for in the contract between

Reliant and Daigle. Instead, the court granted Reliant’s request to present evidence of its actual

damages under the CPA and ordered it to file a renewed motion for default judgment. Reliant

filed its motion with accompanying exhibits on August 11, 2023, and the court held a hearing on

January 19, 2024.

Standard of Review

Fed. R. Civ. P. 55 establishes two processes for awarding damages by default judgment.

Rule 55(b)(1) allows damages to be awarded against a defaulting party on the pleadings when

the claim is for a “sum certain,” meaning “there is no doubt as to the amount to which a plaintiff

is entitled as result of the defendant’s default.” KPS & Assocs., Inc. v. Designs By FMC, Inc.,

, 19 (1st Cir. 2003). “The classic example is an enforceable liquidated damages clause

in a contract.” Id. at 20. However, if the claimed sum is not certain, the court proceeds under

Rule 55(b)(2) and receives evidence on the issue of damages. Id. “[A] plaintiff must prove the

damages it claims” under Rule 55(b)(2), Equip. E., LLC v. Corbell Dev., LLC, No. 20-CV-274-

JD,

, at *1 (D.N.H. Sept. 16, 2020), and a claim for lost profits must be proven

2 with “reasonable certainty,” Boyle v. City of Portsmouth,

, 792 (2020). “[D]amages

cannot be awarded for ‘speculative losses.’” Boyle, 172 N.H. at 792.

Discussion

Because the court already decided the issue of Daigle’s liability when it granted

Reliant’s first motion for default judgment, all that is left for the court’s determination is the

question of the total amount of damages due to Reliant.

Although Reliant avers that its claimed damages are a sum certain and that its motion is

properly bought under Rule 55(b)(1), that assertion is incorrect. Reliant seeks actual damages for

its lost profits. As the court previously held in response to Reliant’s argument that its actual

damages are the liquidated damages provided in the subcontractor agreement, “Liquidated

damages and actual damages are distinct as a matter of New Hampshire law.” Doc. no. 21 at 2

(quotations omitted) (citing Orr v. Goodwin,

(2008)). Reliant also seeks

treble damages under RSA 358-A:10, I, arguing that the evidence establishes that Daigle’s

violation of the CPA was knowing and willful. Inherent in Reliant’s motion is an

acknowledgment that its damages are not certain, as they depend on findings made by the court

based on evidence put forth by Reliant. And, Reliant seeks an award of attorneys’ fees, which

also must be proven. Doc. no. 20 at 2 n.1 (citing Trustees of Sheet Metal Workers Loc. Union

No. 17 Ins. Fund v. Phils HVAC, Inc., No. 21-CV-10680-ADB,

, at *2 (D.

Mass. Oct. 6, 2021)). For these reasons, Reliant’s claimed damages are not for a sum certain, and

the court analyzes Reliant’s motion under the default judgment standard in Rule 55(b)(2).

3 I. Lost Profits

In support of its application for actual damages under the CPA, Reliant claims that, due

to Daigle’s breach, it lost profits of $89,921.92. Reliant previously described its actual damages

as “the net profits lost on every day that Daigle worked directly for Reliant’s customer.” Doc. no.

22 at 5. It now takes the more nebulous position that its actual damages are its anticipated net

profits, determined by the number of annual hours worked by the “typical contractor,” multiplied

by the expectation that Daigle would work for at least one year, deducting compensation to

Daigle and other anticipated costs to Reliant. Doc. no. 24 at 2-3. Reliant’s evidence is 1) the

$165 per hour rate that Reliant’s client agreed to pay it in exchange for Daigle’s services; 2) the

$100 per hour rate that Reliant agreed to pay Daigle for its services, as well as other costs that

Reliant would have incurred over the year-long contract; 3) the independent subcontractor

agreement and statement of work, signed by Reliant and Daigle, estimating that Daigle’s

consulting work for Reliant’s client would last one year; and 4) the declaration of Reliant’s Chief

Operating Officer, Mark Castellarin, that “a typical consultant bills 2,000 hours in a year,” doc.

no. 24-2 at 2. Considering these pieces of evidence together, Reliant asserts that its net profits

would have been its gross revenue (2,000 hours times $165 per hour) minus compensation to

Daigle (2,000 hours times $100 per hour) and other expenses associated with the contract, for a

total of $89,921.92.

Although the court finds that Reliant has established by a reasonable certainty the

relevant rates that would have determined the amount of its profit, it has not met its burden

regarding the other essential part of the lost profits determination: the number of hours that

Daigle would have worked under the subcontractor agreement. See P.C. Hoag & Co. v. Man Lift

Mfg., Co., No. 15-CV-498-JL,

, at *9 (D.N.H. Jan. 10, 2018), R&R approved,

4 No. 15-CV-498-JL (D.N.H. Feb. 1, 2018) (specific evidence offered by plaintiff on default

judgment “barely pushed its 1,000-hour-per-year estimate beyond the realm of mere

speculation”). In fact, the evidence offered by Reliant in this regard is scant, speculative, and

indefinite.

First, Reliant argues that because the statement of work signed by it and Daigle

“estimated” that the engagement would last one year, doc. no. 24-3 at 6, the lost profits

calculation should assume that Daigle would have performed for one year. Reliant does not offer

any evidence as to why the nature of Daigle’s work makes it probable that its services would

have, in fact, been required for one year. More importantly, Reliant does not address the fact that

its former client, who was hiring Daigle (through Reliant), was not a party to the statement of

work. Indeed, the independent subcontractor agreement explicitly acknowledges that Reliant’s

client “may cancel an assignment with or without cause, in its sole discretion,” which would

“automatically” amend the statement of work “to reflect an end date commensurate with the

effective date of the client’s cancellation.”

Therefore, even though Reliant and Daigle both

estimated that Daigle’s work would last one year, Reliant has not produced any evidence that its

former client also had that understanding, let alone a signed instrument proving the same.2 See,

e.g., Mentis Sciences, Inc. v. Pittsburgh Networks, LLC,

, 590 (2020) (explaining

that plaintiff’s “claimed lost profit damages . . . were not inherent in the contract [at issue]”

because “[t]he plaintiff’s profits . . . relied on actions and contingencies that would have taken

2 Castellarin’s declaration asserts that Daigle’s consulting engagement “could have lasted even longer [than one year], based on the communications between Reliant and [its former client].” Doc. no. 24-2 at 3. Reliant does not cite to, quote, or attach to its motion any communications with its former client, and therefore the court is unable to evaluate the basis for Castellarin’s assertion. Even so, his statement only casts further doubt on Reliant’s position regarding the projected duration of Daigle’s engagement.

5 place outside of its contract with the defendant”). Without some proof that there would have

been demand for Daigle’s services from Reliant’s former client for one year, the court cannot

calculate actual damages based on that assumption.

The evidence is similarly lacking regarding Reliant’s assertion that Daigle would have

worked 2,000 hours over the course of the year. For this proposition, Reliant offers only

Castellarin’s declaration that “a typical consultant bills 2,000 hours in a year.” Doc. no. 24-2 at

3. This statement has little relevance to the question of how many hours Reliant expected Daigle

to bill, which again may have depended upon the nature of his work, client demands, and other

considerations specific to this case that Reliant does not address. See P.C. Hoag & Co.,

, at *9. Reliant does not even address how Daigle is comparable to a purportedly

“typical consultant.” Moreover, the independent subcontractor agreement makes clear that

Reliant and Daigle anticipated that Daigle would be an hourly employee, compensated only for

the hours that he actually worked and that were invoiced to and approved by Reliant’s client.

Doc. no. 24-3 at 1. The evidence Reliant has offered does not prove with reasonable certainty

that Daigle would have worked 2,000 hours had he not breached his contract with Reliant. When

the court suggested as much at the evidentiary hearing, Reliant’s counsel made an offer of proof

that simply repeated the content of Castellarin’s declaration. That offer of proof, like the

declaration, is insufficient.

The paucity of evidence Reliant offers to prove its actual damages is particularly notable

because the basis for Reliant’s claim (which the court credits) is that Daigle acted willfully and

knowingly by continuing to consult for Reliant’s former client after breaching its contract with

Reliant. Necessarily, then, Reliant could have ascertained the number of hours that Daigle

actually consulted for Reliant’s former client. In other words, these facts are discoverable.

6 Reliant’s counsel conceded at the evidentiary hearing that it could have issued third-party

subpoenas to Reliant’s former client and offered no persuasive explanation for its decision to

forgo that effort. Instead, Reliant requested an opportunity to gather additional evidence and file

a third motion for default judgment. Given the procedural posture of this case, the court declines

to grant that request. Regardless, on the evidence Reliant has put forth, the court finds that it has

failed to prove with reasonable certainty that it lost profits of $89,921,92.

II. Liquidated Damages

Although Reliant has not proven its actual damages under the CPA, the court awards

Reliant liquidated damages. The independent subcontractor agreement provides for the lion’s

share of those damages. Doc. no. 24-3. Section 3 of the agreement, entitled “Restrictive

Covenants,” states that if Daigle “violates any part of [the covenant not to deal directly with

Reliant’s clients in order to deprive Reliant the benefit of the contract], it will pay to Reliant, for

each occurrence, the sum of $35,000.00 as liquidated damages.” Id. at 2. Reliant and Daigle

determined that liquidated damages were warranted because they “agree[d] that the damages that

Reliant may suffer as a result of [Daigle’s] breach of this paragraph are difficult to quantify” and

that liquidated damages are “a reasonable estimate of the harm Reliant would suffer.” Id. The

court previously adopted the R&R as to the enforceability of the restrictive covenant and

Daigle’s liability under it, and the court awards Reliant liquidated contractual damages of

$35,000 based on that analysis. See doc. no. 20 at 14-16 (R&R to enforce the restrictive

covenant). At the hearing, Reliant’s counsel argued that $35,000 is insufficient to compensate

Reliant for Daigle’s breach. Given that Reliant freely agreed to the liquidated damages provision

7 in its contract with Daigle, including the express language on the adequacy of $35,000 in

anticipation of this particular breach, the court does not find its argument persuasive.

The R&R also evaluated Reliant’s claim for treble damages under the CPA. It found

treble damages warranted by Daigle’s conduct. Although the court previously declined to adopt

the magistrate’s recommendation trebling Reliant’s contractual liquidated damages, the court

agrees that treble damages are warranted. In the absence of actual damages, the CPA provides

that the plaintiff should recover $1,000.00. Therefore, the court awards Reliant trebled statutory

liquidated damages of $3,000.00.

III. Attorneys’ Fees and Costs

The court previously adopted the magistrate’s recommendation to award Reliant its

attorneys’ fees. Doc. no. 23 at 1. Since then, Reliant has incurred additional fees related to its

motion for default judgment, and it now moves for an award of that total sum. Doc. no. 24 at 1.

In support of its motion for fees, Reliant submitted detailed invoices and an affidavit from its

counsel explaining them. Doc. nos. 24-5 & 24-6. Based on those submissions, the court finds that

Reliant’s fee request is reasonable and awards it $10,061.50 in total for fees, plus costs in the

amount of $181.30.

Conclusion

For the foregoing reasons, the court awards plaintiff $48,242.80, which includes:

A. Liquidated contractual damages of $35,000.00;

B. Liquidated statutory damages of $3,000.00;

8 C. Attorneys’ fees of $10,061.50, and;

D. Costs of $181.30.

SO ORDERED.

__________________________ Samantha D. Elliott United States District Judge

January 24, 2024

cc: Counsel of Record.

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