Premier Gaming Trailers LLC v. Luna Diversified Enterprises, Inc.

Filing 14

ORDER granting 13 Motion for Default Judgment. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 2/24/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PREMIER GAMING TRAILERS LLC,
Plaintiff,
v.

Case No. 8:16-cv-3378-T-33TGW

LUNA DIVERSIFIED ENTERPRISES,
INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff Premier Gaming Trailers LLC’s Motion for Final
Default Judgment on Complaint (Doc. # 13), filed on February
9, 2017. The time for filing a response has passed and no
response in opposition has been filed, nor has a motion to
set aside the default entered by the Clerk against Defendant
Luna

Diversified

Enterprises,

Inc.

been

filed.

For

the

reasons that follow, the Court grants the Motion.
I.

Background
Premier

Gaming

Trailers

is

a

mobile

gaming

trailer

fabricator located in Tampa, Florida. (Doc. # 1 at ¶ 8). On
August 26, 2016, Premier Gaming Trailers was contacted by
Luna, an equipment supplier and consulting firm, regarding a
joint

venture

“that

involved

submitting

bids

to

certain

requests for quote issued by government agencies.” (Id. at ¶¶
9, 10). When there was an opportunity to bid on a request for
quote, Premier Gaming Trailers would supply Luna with “plans
consisting of the design, features, and specifications, as
well as production timetables and cost of” production and
Luna would “then take the necessary steps to formally submit
the bid.” (Id. at ¶ 11).
If the bid was awarded to Premier Gaming Trailers and
Luna, Premier Gaming Trailers was to fabricate the goods and
deliver said goods to the procuring agency. (Id. at ¶ 12).
The proceeds of any sale made in furtherance of the joint
venture were to have been apportioned per “‘Dual Check’
terms.” (Id. at ¶ 13). “The Dual Check terms provided that
[Premier Gaming Trailers] and Luna would receive separate
payments

.

.

.

in

accordance

with

their

respective

compensation terms pursuant to the Parties’ joint venture
agreement.”

(Id.).

reduced

a

to

The

formal,

joint

venture

written

agreement

contract,

was

although

not
“the

agreement . . . is evidence in certain communications . .
.[,] as well as the performance of the terms of the Joint
Venture Agreement by the Parties.” (Id. at ¶ 14).
In September of 2016, Marcos Morales on behalf of Luna
contacted Premier Gaming Trailers with regard to a request

2

for quote issued by the Department of the Army, identified as
Solicitation Number W9124D-16-T-0038. (Id. at ¶ 15). Upon
full

performance

of

services

rendered

with

respect

to

Solicitation Number W9124D-16-T-0038, the contracted party
was to receive $1,196,183. (Id. at ¶ 16).
Before jointly bidding on Solicitation Number W9124D16-T-0038,
ventured

Premier

on

three

Gaming
other

Trailers
requests

and
for

Luna
quotes

had

“joint

that

were

subsequently not awarded to the Parties.” (Id. at ¶ 17). For
each of those three instances in which the bid was not awarded
to Premier Gaming Trailers and Luna, Luna informed Premier
Gaming Trailers of the failure to secure the bid. (Id.).
Premier Gaming Trailers, however, was not provided an update
with respect to Solicitation Number W9124D-16-T-0038. (Id. at
¶ 18).
“Concerned about the lack of communication coming from
Luna,” the owner and manager of Premier Gaming Trailers, Lidan
Bekhor, contacted the Army. (Id. at ¶¶ 8, 19). The Army
informed Bekhor that Luna had been awarded the bid for
Solicitation Number W9124D-16-T-0038. (Id. at ¶ 20). Bekhor
was able to determine that Luna was awarded the bid based on
the information provided to Luna by Premier Gaming Trailers.
(Id. at ¶ 21). Premier Gaming Trailers’ representatives then

3

attempted to contact Morales but to no avail; finally, Jason
Currey, a representative of Luna, answered one of Premier
Gaming Trailers’ phone calls. (Id. at ¶ 22).
Currey acknowledged that the bid for Solicitation Number
W9124D-16-T-0038 had been awarded to Luna but indicated “Luna
was unilaterally terminating the Joint Venture Agreement in
an attempt to locate a fabricator that could build the Units
at a lower cost . . . and was intending that [Premier Gaming
Trailers] receive no compensation . . . .” (Id. at ¶ 23). On
October 28, 2016, Premier Gaming Trailers served Luna with a
demand letter, informing Luna of Premier Gaming Trailers’
claims against Luna and demanding payment. (Id. at ¶ 25).
Luna did not acquiesce to Premier Gaming Trailers’ demand.
(Id. at ¶ 26).
Thereafter, on December 9, 2016, Premier Gaming Trailers
instituted this action against Luna. (Id.). Premier Gaming
Trailers’ Complaint asserts a claim for breach of the joint
venture agreement (Count I), unjust enrichment (Count II),
fraud in the inducement (Count III), and conversion (Count
IV). (Id.). Premier Gaming Trailers “attempted to serve Luna
via process server, but was ultimately unsuccessful.” (Doc.
# 10 at ¶ 3). Then, relying on Section 48.161, Fla. Stat.,
and Hansen Beverage Company v. Consolidated Distributors,

4

Inc., No. 6:11-cv-329-Orl-22DAB, 2012 WL 12903172 (M.D. Fla.
Jan. 30, 2012), Premier Gaming Trailers effected service of
process upon Luna by having the Florida Secretary of State
accept service on behalf of Luna. (Doc. # 10 at ¶ 6). On
January 18, 2017, Premier Gaming Trailers sent Luna the alias
summons issued on January 4, 2017, the Complaint, and a notice
that the Florida Secretary of State had accepted service of
the alias summons via certified mail. (Id. at ¶ 7). Premier
Gaming

Trailers

has

not

received

Luna’s

return

receipt.

(Id.). Premier Gaming Trailers specifically averred that
“[u]pon

information

and

belief,

Luna

has

been

actively

avoiding service.” (Id. at ¶ 8).
As such, Premier Gaming Trailers applied to the Clerk of
Court for entry of Clerk’s Default on February 1, 2017. (Id.).
The Clerk entered default against Luna on February 2, 2017.
(Doc. # 11). A week later, having received no appearance from
Luna or motion to set aside the default, the Court instructed
Premier Gaming Trailers to proceed with moving for default
judgment. (Doc. # 12). On February 9, 2017, Premier Gaming
Trailers filed the instant Motion seeking default judgment
against Luna. (Doc. # 13). The time for filing a response to
the

Motion

has

passed

and

Luna

5

failed

to

respond

in

opposition. Likewise, Luna has not moved to set aside the
Clerk’s Default or otherwise appeared before this Court.
II.

Legal Standard
Federal Rule of Civil Procedure 55(a) provides: “When a

party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party’s

default.”

A

district

court

may

enter

a

default

judgment against a properly served defendant who fails to
defend or otherwise appear pursuant to Federal Rule of Civil
Procedure 55(b)(2). DirecTV, Inc. v. Griffin, 290 F. Supp. 2d
1340, 1343 (M.D. Fla. 2003).
The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment. See
Tyco Fire & Sec. LLC v. Alcocer, 218 Fed. Appx. 860, 863 (11th
Cir. 2007) (citing Nishimatsu Constr. Co. v. Hous. Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)). Rather, a Court must
ensure that there is a sufficient basis in the pleadings for
the judgment to be entered. Id. A default judgment has the
effect of establishing as fact the plaintiff’s well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal. Id.

6

III. Discussion
“Under Florida law, a breach of contract arises when
there exists (1) a valid contract; (2) a material breach of
that

contract;

and

(3)

resulting

damages.”

Energy

Smart

Indus., LLC v. Morning Views Hotels–Beverly Hills, LLC, 660
Fed. Appx. 859, 862 (11th Cir. 2016) (quoting Beck v. Lazard
Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999) (per
curiam)) (internal quotation marks omitted). “The elements of
a valid contract require: (1) an offer; (2) acceptance of the
offer; (3) consideration; and (4) sufficient specification of
the essential terms of the agreement.” Merlin Petroleum Co.,
Inc. v. Sarabia, No. 8:16-cv-1000-T-30TBM, 2016 WL 6947385,
at *3 (M.D. Fla. Nov. 28, 2016).
“A claim for unjust enrichment has three elements: (1)
the plaintiff has conferred a benefit on the defendant; (2)
the defendant voluntarily accepted and retained that benefit;
and

(3)

the

circumstances

are

such

that

it

would

be

inequitable for the defendants to retain it without paying
the value thereof.” Virgilio v. Ryland Grp., Inc., 680 F.3d
1329, 1337 (11th Cir. 2012).
“A cause of action for fraud in the inducement contains
four elements: (1) a false statement regarding a material
fact;

(2)

the

statement

maker’s

7

knowledge

that

the

representation is false; (3) intent that the representation
induces another’s reliance; and (4) consequent injury to the
party acting in reliance.” PVC Windoors, Inc. v. Babbitbay
Beach Const., N.V., 598 F.3d 802, 808-09 (11th Cir. 2010)
(citation and internal quotation marks omitted).
And, with respect to Count IV:
[c]onversion is an act of dominion wrongfully
asserted over another’s property inconsistent with
his ownership therein. . . . The tort may occur
where a person wrongfully refuses to relinquish
property to which another has the right of
possession, and it may be established despite
evidence that the defendant took or retained
property based upon the mistaken belief that he had
a right to possession, since malice is not an
essential element of the action.
United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir.
2009) (internal quotation marks and citations omitted).
After

having

reviewed

the

Complaint’s

well-pled

allegations, which by virtue of its default Luna is deemed to
admit, and the attachments thereto in the light of the
foregoing elements of the various causes of action, the Court
finds that Premier Gaming Trailers is entitled to the entry
of

final

default

judgment.

As

established

by

Bekhor’s

affidavit, the bid identified as Solicitation Number W9124D16-T-0038 was for 157 units. (Doc. # 13-1 at ¶¶ 2, 6, 9).
Furthermore,

Bekhor’s

affidavit

8

establishes

that

Premier

Gaming Trailers “was entitled to $7,619.00 for each” unit.
(Id. at ¶ 9). Thus, Premier Gaming Trailers is entitled to an
award of $1,196,183 (calculated as $7,619 multiplied by 157).
Premier Gaming Trailers also seeks costs totaling $824.02 for
costs. (Doc. # 13 at 7).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Premier Gaming Trailers LLC’s Motion for Final
Default Judgment on Complaint (Doc. # 13) is GRANTED.

(2)

The Clerk is directed to enter default judgment in favor
of Plaintiff Premier Gaming Trailers LLC and against
Defendant Luna Diversified Enterprises, Inc. in the
amount of $1,196,183 in damages plus $824.02 in costs,
which shall accrue post-judgment interest at the federal
statutory rate, for which sum let execution issue.

(3)

Once judgment is entered, the Clerk is directed to CLOSE
this case.
DONE and ORDERED in Chambers in Tampa, Florida, this

24th day of February, 2017.

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