Energy Acuity, LLC v. Beneficial Energy, LLC
ORDER granting in part and denying in part 13 Motion for Default Judgment; adopting in part 15 Report and Recommendations. So Ordered by Judge Raymond P. Moore on 08/17/2017. (rmlc2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Case No. 16-cv-00906-RM-MJW
ENERGY ACUITY, LLC,
BENEFICIAL ENERGY, LLC,
Pending before the Court is the April 3, 2017 Report and Recommendation of
U.S. Magistrate Judge Michael J. Watanabe (“the R&R”), recommending that the Court grant
plaintiff Energy Acuity, LLC’s (“plaintiff”) motion for default judgment (“the motion for default
judgment”) (ECF No. 13) against defendant Beneficial Energy Solutions, LLC1 (“defendant”), enter
default judgment against defendant, and permit plaintiff to file an affidavit to establish the amount
of costs and fees to which it is entitled. (ECF No. 15.)
The R&R specifically advised the parties that written objections were due within 14 days
after service of the same. (ECF No. 15 at 4.) The Magistrate Judge warned that failure to file timely
and specific objections would waive de novo review of the R&R. (Id.) More than four months later,
no objections to the R&R have been filed in this case.
Apparently, the name of defendant as stated in the Complaint missed out the word “Solutions”
from defendant’s business name.
“When no timely objection is filed, the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72, Adv.
Comm. Notes, subdivision (b) (1983); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991) (“In the absence of timely objection, the district court may review a magistrate’s report under
any standard it deems appropriate.”).
In this light, after careful consideration of the record, and the unopposed R&R, the Court
ADOPTS the R&R IN PART. Specifically, the Court finds that the Magistrate Judge’s analysis and
recommendation exhibit no clear error and ADOPTS the same with respect to: (1) denying the
motion for default judgment to the extent it seeks default judgment with regard to the copyright
infringement claim; (2) finding the Complaint’s allegations establish the elements of a breach of
contract; and (3) granting the motion for default judgment to the extent it seeks default judgment
with regard to the breach of contract claim. (ECF No. 15 at 3.)
The Court, however, declines to adopt the Magistrate Judge’s recommendation that plaintiff
is entitled to $21,142.25 in damages for the breach of contract claim. (See id.) As far as the Court
is concerned, plaintiff is not entitled to damages for a $9,975.00 renewal fee that purportedly became
due on June 24, 2016. (See ECF No. 13 at 7-8.) In Colorado, “the measure of damages for a breach
of contract is the loss in value to the injured party of the other party’s performance caused by its
failure or deficiency, plus any other incidental or consequential loss caused by the breach, less any
cost or other loss that the injured party has avoided by not having to perform.” Gen. Ins. Co. of
America v. City of Colorado Springs, 638 P.2d 752, 759 (Colo. 1981) (emphasis added). Here, the
alleged breach of the parties’ agreement is defendant’s “continued failure to pay the Initial License
Fee ….” (ECF No. 1 at ¶ 16.) The alleged loss to plaintiff is the “Initial License Fee.” (Id.) As a
result, that is all, plus interest, to which plaintiff is entitled. See Gen. Ins. Co. of America, 638 P.2d
The Court further notes that, in the motion for default judgment, plaintiff calculated interest
on the Initial License Fee as of July 8, 2016—the date the motion for default judgment was filed.
(ECF No. 13 at 8 n.3.) As it is now long past July 8, 2016, the Court will allow plaintiff to file a
notice informing the Court of the interest that has accrued on the $9,500.00 Initial License Fee as
of the date of the filing of the notice. The Court will then instruct the Clerk to enter default judgment
on plaintiff’s behalf with a damages amount reflecting an updated interest calculation. Plaintiff shall
have until on or before August 22, 2017 to file the above-described notice.
Finally, the Court ADOPTS the Magistrate Judge’s recommendation to allow plaintiff to file
an affidavit and any other supporting material to establish the amount of attorneys fees and costs to
be awarded. Plaintiff shall have until on or before August 28, 2017 to file such affidavit and
Accordingly, the Court:
ADOPTS IN PART the Report and Recommendation (ECF No. 15) as set forth
The Court notes that its analysis may have been different had plaintiff filed an amended complaint
after June 24, 2016, and alleged that defendant was continuing to use plaintiff’s product(s) after the parties’
agreement renewed. See Int’l Bhd. of Elec. Workers, Local No. 12 v. A-1 Electric Serv., Inc., 535 F.2d 1, 4
(10th Cir. 1976) (explaining that, despite the defendant’s failure to comply with a contractual provision
requiring 90-day written notice of termination of a collective bargaining agreement, it was appropriate to
limit damages to the end of the contractual year in which the breach occurred because the defendant’s
“intent to terminate the agreement was adequately manifest by its noncompliance.”). Here too, defendant
failed to comply with the written notice provision and its noncompliance with the parties’ agreement could
be construed as manifesting intent to terminate. That being said, if defendant was still using plaintiff’s
product(s) after the renewal date, then its intent to terminate the agreement likely could not be so construed
from its noncompliance. Getting to that point, though, would require the filing of an amended complaint,
with the attendant need to serve the same on defendant, and, potentially, move for default judgment anew.
GRANTS IN PART and DENIES IN PART the motion for default judgment (ECF
DATED this 17th day of August, 2017.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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