QUASAR ENERGY GROUP v. VGBLADS LLC et al
REPORT AND RECOMMENDED DECISION re 28 MOTION for Judgment on the Pleadings filed by VGBLADS LLC, ANDROSCOGGIN SAVINGS BANK, VILLAGE GREEN BRUNSWICK LANDING LLC Objections to R&R due by 8/11/2017 By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
quasar energy group, llc,
VGBLADS, LLC, et al.,
RECOMMENDED DECISION ON DEFENDANTS’ MOTION
FOR JUDGMENT ON THE PLEADINGS
Defendants VGBLADS, LLC (“VGBLADS”) and Village Green Brunswick Landing,
LLC (“Village Green”) (together, “Village Green Defendants”) and defendant Androscoggin
Savings Bank (“ASB”) jointly move pursuant to Federal Rule of Civil Procedure 12(c) for
judgment on the pleadings in this breach of contract action alleging default under a promissory
note. See Defendants’ Joint Motion for Judgment on the Pleadings Under Federal Rule of Civil
Procedure 12(c) (“Motion”) (ECF No. 28) at 1-2. For the reasons that follow, I recommend that
the court deny the Motion.
I. Applicable Legal Standards
A motion for judgment on the pleadings pursuant to Rule 12(c) “is treated much like a Rule
12(b)(6) motion to dismiss.” Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)
(citation omitted). “Because such a motion calls for an assessment of the merits of the case at an
embryonic stage, the court must view the facts contained in the pleadings in the light most
favorable to the nonmovant and draw all reasonable inferences therefrom to the nonmovant’s
behoof.” R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006) (citations omitted).
In assessing a Rule 12(c) motion a “court may supplement the facts contained in the pleadings by
considering documents fairly incorporated therein and facts susceptible to judicial notice.” Id.
There is no resolution of contested facts in connection with a Rule 12(c) motion: a court may enter
judgment on the pleadings only if the properly considered facts conclusively establish the movant’s
point.” Id. (citation omitted).
To withstand a Rule 12(c) motion, “a complaint must contain factual allegations that ‘raise
a right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true[.]’” Pérez-Acevedo, 520 F.3d at 29 (quoting Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007)). In sum, “to survive a motion for judgment on the pleadings, the complaint must
state a claim that is plausible on its face.” Pineiro v. Gemme, 937 F.Supp.2d 161, 168-69 (D. Mass.
2013) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
II. Factual Background
The operative complaint, and documents fairly incorporated therein, reveal the following,
relevant to resolution of the Motion.1
Plaintiff quasar energy group, llc (“Quasar”), a corporation with a principal place of
business in Ohio, designs and manufactures anaerobic digestion technology that recycles organic
wastes and transforms them into biogas, reusable energy, fertilizer, and organic soil amendments.
Plaintiff Quasar Energy Group, LLC’s First Amended Complaint (“First Amended Complaint”)
As noted, a Rule 12(c) motion is evaluated much like a Rule 12(b)(6) motion, and the First Circuit has instructed
that, in reviewing a complaint for sufficiency pursuant to Rule 12(b)(6), a court “should begin by identifying and
disregarding statements in the complaint that merely offer legal conclusions couched as fact or threadbare recitals of
the elements of a cause of action.” Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (citation and
internal punctuation omitted). “Non-conclusory factual allegations in the complaint must then be treated as true, even
if seemingly incredible.” Id. “If that factual content, so taken, allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged, the claim has facial plausibility.” Id. (citation and internal quotation
(ECF No. 21) ¶¶ 1, 7. 2 The Village Green Defendants are Maine corporations with principal
places of business in Cumberland County, Maine. Id. ¶¶ 2-3.
On or about April 30, 2015, Quasar entered into an Engineering, Procurement, and
Construction contract (“EPC Contract”) with the Village Green Defendants whereby it agreed,
among other things, to design, engineer, and construct an anaerobic digester system on property
located at 170 Orion Street in Brunswick, Maine, the former site of the United States Naval Station
Brunswick Branch. Id. ¶ 8. At all relevant times, Quasar and the Village Green Defendants agreed
that, in satisfaction of a portion of the purchase price, the Village Green Defendants would enter
into a Subordinate Secured Promissory Note (“Quasar Note”) in the amount of $640,000. Id. ¶ 9.
Quasar provided the Village Green Defendants a loan commitment letter dated December 5, 2014
(“Quasar Commitment Letter”), the provisions of which the Village Green Defendants indicated
were satisfactory to them. Quasar Commitment Letter, Exh. 1 (ECF No. 33-1) to Plaintiff quasar
energy group, llc’s Memorandum in Opposition to Defendants’ Joint Motion for Judgment on the
Pleadings (“Opposition”) (ECF No. 33).
On or about April 30, 2015, ASB, Quasar, and Coastal Enterprises, Inc. (“CEI”) entered
into an Intercreditor Agreement. Intercreditor Agreement, Exh. 2 (ECF No. 27-2) to Defendants
VGBLADS, LLC and Village Green Brunswick Landing, LLC’s Answer to Quasar’s First
Amended Complaint (“Village Green Defendants’ Answer”) (ECF No. 27). The Village Green
Defendants were named as parties to the agreement, although they did not sign it. Id. at 1, 11-13.
The Intercreditor Agreement provided that, whereas (i) ASB had made a permanent loan of $3.2
million and an interim loan of $1.92 million to VGBLADS in connection with the Brunswick
anaerobic digestion facility project (“Project”), (ii) the ASB $1.92 million loan was “to be paid off
According to the complaint, the plaintiff’s name is in lowercase. See First Amended Complaint ¶ 1.
following completion of construction of the Project with the proceeds of an SBA [Small Business
Administration] 504 Loan” by Granite State Economic Development Corporation (“GSEDC”) in
the amount of $1.971 million, (iii) CEI had made a loan of $1.825 million to VGBLADS in
connection with the Project, and (iv) Quasar had “committed to make a loan in the principal
amount of up to $640,000” (“Quasar Loan”) to VGBLADS in connection with the Project,
evidenced, inter alia, by the “QUASAR Loan Documents” of even or near date therewith, defined
in Exhibit F as the “$640,000 Subordinate Secured Promissory Note,” the parties had “agreed to
enter into this Agreement to establish the relative priorities and rights of their respective loans,
liens and encumbrances with respect to the Project.” Id. at 1-2 & 19, Exh. F.
Quasar warranted, inter alia, that the Quasar Loan would be evidenced and secured by the
promissory note described in “Exhibit E” and would “be made upon completion of construction
by conversion of retainage due Quasar in the amount of $640,000 to the Quasar Loan.” Id. at 3,
§ 5. It further stated that the Quasar Commitment Letter referenced in “Exhibit E” had been
accepted by VGBLADS and that all conditions capable of being satisfied by the borrower as of
the date of the Intercreditor Agreement had been satisfied. Id. at 4, § 9.3
The Intercreditor Agreement specified that, during construction of the Project, the ASB
$3.2 million loan had first priority, the ASB $1.92 million loan had second priority, the CEI loan
had third priority, and Quasar “with respect to the QUASAR Loan Documents” had fourth priority.
Id. at 5, § 11(a). It specified that “[f]rom and after the completion of construction of the Project
and the SBA Take-Out,” the ASB $3.2 million loan had first priority, the GSEDC loan had second
The Intercreditor Agreement mistakenly cited “Exhibit E” as referring to both the Quasar Loan and the Quasar
Commitment Letter. Exhibit E pertains to CEI loan documents. Intercreditor Agreement at 18, Exh. E. The only
exhibit pertaining to the Quasar Loan is Exhibit F. Id. at 19, Exh. F. There is no exhibit pertaining to the Quasar
Commitment Letter. This error has no bearing on resolution of the Motion.
priority, the CEI loan had third priority, and Quasar “with respect to the QUASAR Loan
Documents” had fourth priority. Id. at 5, § 11(b).
In section 13, the Intercreditor Agreement addressed notice of default and the opportunity
to cure during two periods: “[d]uring construction of the Project and prior to SBA Take-Out,” and
“[f]rom and after SBA Take-Out[.]” Id. at 6-7, § 13(a)-(c).
Pursuant to section 13(a), during the first period, ASB and CEI agreed “to give written
notice of any default under their respective loan documents to each other and to Quasar” and the
Village Green Defendants. Id. at 6, § 13(a). Section 13(a) also provided that “[a]ny lender shall
have the right, but not the obligation, to cure all defaults identified in the notice within thirty (30)
days after receipt of any such notice of default[.]” Id.
Pursuant to section 13(b), during the first period, Quasar agreed “to give written notice of
any default under the Quasar Commitment Letter to the other Lenders” and the Village Green
Defendants and to give written notice of any default under the EPC Contract. Id. at 7, § 13(b).
Section 13(b) provided that, following notice, “[s]uch other lenders shall have the right, but not
the obligation, to cure all defaults identified in the notice under the Quasar Commitment Letter
and under the EPC Contract within sixty (60) days after receipt of any such notice of default[.]”
Id. The Village Green Defendants were to “have the same time periods to cure defaults under the
Quasar Commitment Letter.” Id. Section 13(b) further stated:
Quasar further agrees that so long as [the Village Green Defendants] are not in
default under the EPC Contract, or provided that such defaults have been cured,
and provided that any defaults under the Quasar Commitment Letter have been
cured, it will make the Quasar Loan at the time of completion of construction of the
Project, and will consent to the assignment of the Quasar Commitment Letter and
Quasar Loans to any subsequent owner of the Project . . . .
With respect to the second period, “[f]rom and after SBA Take-Out,” section 13(c)
provided that “the Lenders agree to give written notice of any default under their respective loan
documents to each other” and to the Village Green Defendants, with “[a]ll lenders” having the
right but not the obligation to cure all defaults identified in the notice within 60 days. Id. at 7,
Finally, section 13(d) provided, “The Lenders agree to accept all curative acts of each
other.” Id. at 7, ¶ 13(d).
The Intercreditor Agreement was signed by ASB and CEI on April 29, 2015, and by Quasar
on April 30, 2015. Id. at 11-13. On April 30, 2015, the Village Green Defendants signed the
Quasar Note, which extended the option of borrowing any amount from zero to $640,000 at the
time of final completion of the Project. Quasar Note, Exh. 1 (ECF No. 21-1) to First Amended
Complaint. The Quasar Note provided that, if the Village Green Defendants failed to pay any
amount due under the Note and the failure continued for 20 days after the due date, Quasar could,
at its option, by written notice to the Village Green Defendants, “declare the entire principal
amount of this Note, together with all accrued interest thereon, immediately due and payable[.]”
Id. at -.
The Quasar Note, by its terms, is subject to the Intercreditor Agreement, providing: “In the
event of any conflicts between the Note and the Intercreditor Agreement, the terms of the
Intercreditor Agreement will govern.” Id. at . See also Intercreditor Agreement at 9, § 19
The Project was finally completed pursuant to the EPC Contract on or before March 28,
2016. First Amended Complaint ¶ 16. The Village Green Defendants took possession of, and
began operations of the equipment on, the Project site on or before March 28, 2016, and confirmed
to Quasar on or before March 29, 2016, that the final completion of the EPC Contract had occurred.
Id. ¶¶ 17-18.
The Village Green Defendants were obligated to make an interest-only payment in the
amount of $3,200 to Quasar on April 1, 2016. Id. ¶ 19. They failed to do so, and the failure
continued for more than 20 days. Id. ¶ 20.
By letter dated May 26, 2016, copied to ASB and CEI, Quasar notified the Village Green
Defendants of their breach of the Quasar Note, accelerated the total amount due, and demanded
immediate payment of the principal sum of $640,000 together with applicable interest and
reasonable costs and expenses. Id. ¶ 21 & Exh. B (“Notice of Default”) (ECF No. 21-2) thereto.
At all relevant times, the Village Green Defendants have refused and failed to remit the sum of
$640,000, plus interest, costs, and expenses, to Quasar. First Amended Complaint ¶ 22.
By letter dated July 29, 2016, Quasar confirmed to ASB that it had received a July 25,
2016, letter from ASB enclosing a check in the amount of $21,697.44 purportedly attempting to
cure the Village Green Defendants’ default. Exh. 1 (ECF No. 27-1) to Village Green Defendants’
Answer. Quasar stated that it would negotiate the check without prejudice and under protest. Id.
On August 5, 2016, Quasar filed the instant suit, alleging breach of promissory note and seeking
costs and expenses, including attorney fees. Complaint (ECF No. 1).
As of the date of the First Amended Complaint, October 28, 2016, the SBA Take-Out had
not occurred. First Amended Complaint ¶ 25.
The Defendants seek judgment on the pleadings on the basis that Quasar’s suit is predicated
on the mistaken view that section 13(b) of the Intercreditor Agreement did not permit ASB to cure
the Village Green Defendants’ default. See Motion at 10-18. For the reasons that follow, I
conclude that the Defendants fail to meet their burden of demonstrating entitlement to judgment
on the pleadings as a matter of law.
Under Maine law, “[d]etermining whether or not a contract is ambiguous is a question of
law.” Workgroup Tech. Partners, Inc. v. Anthem, Inc., No. 2:15-cv-00002-JAW, 2016 WL
424960, at *15 (D. Me. Feb. 3, 2016) (citation and internal quotation marks omitted). “Contract
language is only ambiguous when it is reasonably susceptible to different interpretations.” Id.
(citation and internal punctuation omitted). “If a court determines that a contract is unambiguous,
its interpretation is also a question of law.” Id. (citation and internal quotation marks omitted).
“On the other hand, if the contract is ambiguous, then its interpretation is a question of fact for the
factfinder.” Id. (citation and internal quotation marks omitted).
“The interpretation of an unambiguous contract must be determined from the plain
meaning of the language used and from the four corners of the instrument without resort to
extrinsic evidence.” Id. (citation and internal quotation marks omitted). “A contract should be
construed to give force and effect to all of its provisions and not in a way that renders any of its
provisions meaningless.” Id. (citation and internal punctuation omitted). “To do so, all parts and
clauses must be considered together that it may be seen if and how one clause is explained,
modified, limited or controlled by the others.” Id. (citation and internal punctuation omitted). See
also, e.g., Handy Boat Serv. Inc. v. Professional Servs., Inc., 1998 ME 134, ¶ 7, 711 A.2d 1306,
1308 (“A contract is to be interpreted to effect the parties’ intentions as reflected in the written
instrument, construed with regard for the subject matter, motive, and purpose of the agreement, as
well as the object to be accomplished.”).
The Defendants contend that the plain meaning of the Intercreditor Agreement, its purpose,
and Quasar’s own actions make clear that ASB had the right pursuant to section 13(b) to cure the
Village Green Defendants’ default. See Motion at 2. Quasar rejoins that the Intercreditor
Agreement plainly did not permit ASB the right to cure and that “extrinsic evidence” in the form
of the parties’ purpose/motive and course of dealing cannot be considered. See Opposition at 612. It argues, in the alternative, that if this “extrinsic evidence” is considered, it supports Quasar’s
interpretation, not that of the Defendants. Id. at 9-12.
1. Plain Meaning
As the Defendants acknowledge, see Motion at 13, section 13(b) of the Intercreditor
Agreement does not expressly employ the term “Promissory Note[,]” Intercreditor Agreement at
7, § 13(b). However, they argue, that term could not have been used as of April 29, 2015, when
ASB and CEI signed the Intercreditor Agreement, because the Quasar Note had not yet been
executed. See Motion at 13. They contend that, in the circumstances, the most accurate way to
refer to the contingent future loan that Quasar had agreed to make at the borrowers’ election was
to term it the “Quasar Commitment Letter.” See id. at 13-14.
They add that, in any event, “[t]he only sensible reading” of the Intercreditor Agreement’s
right-to-cure provision with respect to Quasar is that it allows the same cure rights for Quasar’s
future loan as for the loans that the other lenders had already made. Id. at 14. This is so, they
argue, because the right-to-cure language is the same in both section 13(a), pertaining to the ASB
and CEI loans, and section 13(b), pertaining to the future Quasar loan, and because it is nonsensical
to afford another lender a right to cure a borrower’s default under a commitment letter. See id. at
14-15. They assert that “[a] borrower could not default under a lender’s commitment to loan,
[because] nothing has been borrowed and nothing has been lent”; instead, “[a] borrower defaults
on a loan.” Id. at 15.
However, as Quasar observes, see Opposition at 7-8, the parties expressly referred to the
Quasar Note in other sections of the agreement, defining the term “QUASAR Loan Documents”
to mean the Quasar Note, see Intercreditor Agreement at 2, 3 § 5, 4 § 9, & 19, Exh. F. Accordingly,
as Quasar points out, see Opposition at 8, the parties could have referred to the Quasar Note simply
by using the defined term “QUASAR Loan Documents.”
In addition, section 13(c) of the agreement, pertaining to the time period after the SBA
Take-Out, expressly provides a right to cure defaults under all of the lenders’ respective loan
documents. See Intercreditor Agreement at 7, § 13(c). As Quasar suggests, see Opposition at 9,
the parties could have employed similar language in section 13(b) had they intended to permit
other lenders to cure defaults of the Quasar Note during construction of the Project and prior to
the SBA Take-Out.
Moreover, Quasar argues, the provision for cure of defaults of the Quasar Commitment
Letter and EPC Contract was a deliberate choice that made sense in the circumstances. See
Opposition at 10. Quasar plausibly contends that the parties had reason to provide for the cure of
defaults of the Quasar Commitment Letter: to ensure that Quasar would remain obligated to make
the Quasar Loan through the Quasar Note upon the completion of the Project. See id. Consistent
with that interpretation, section 13(b) pertains to the period “[d]uring construction of the Project[,]”
Intercreditor Agreement at 7, § 13(b), prior to the time that the Village Green Defendants were to
decide whether to exercise their option to borrow up to $640,000 from Quasar, see Quasar Note at
 (option to borrow “shall be exercised by Makers [the Village Green Defendants] at the time of
Final Completion (reference EPC)”). The Defendants’ general argument that a borrower cannot
default on a lender’s commitment letter is unpersuasive.4
The Defendants argue that the court need not consider the Quasar Commitment Letter because the terms of the
Intercreditor Agreement are unambiguous, but that if it is considered, its terms belie Quasar’s argument. See
The Defendants further argue that Quasar’s reading of section 13(b) destroys the basic
purpose of the Intercreditors’ Agreement: to allow lenders to cure defaults that their common
borrowers might incur, preventing the borrowers’ default on one loan from imperiling the
borrowers’ ability to make good on their other loans. See Motion at 15-16. They contend that
“Quasar’s interpretation of the Agreement would create a netherworld in which, until the SBA
takeout, the senior lender’s defaults could be cured, but not Quasar’s.” Id. at 16 (footnote omitted).
They assert that this contravenes the purpose of the default-and-cure provision, which is “to afford
lenders with more at stake the ability to prevent their interests from being undermined by actions
taken by another creditor.” Id. at 17.
Yet, as Quasar rejoins, see Opposition at 11, the purpose of the Intercreditor Agreement,
insofar as can be gleaned from the four corners of that contract, is “to establish the relative
priorities and rights of [the lenders’] respective loans, liens and encumbrances with respect to the
Project[,]” Intercreditor Agreement at 2. Quasar plausibly argues that, from the point of view of
the senior lienholder, ASB, this goal was accomplished by ensuring that Quasar’s retainage of
$640,000 would be converted into a promissory note that could be subordinated to ASB’s liens
rather than remaining a debt immediately due Quasar for work performed. See Opposition at 11.
Quasar further asserts that there were reasons why it had a greater need to cure any default by the
Defendants’ Reply in Support of Joint Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure
12(c) (“Reply”) (ECF No. 34) at 4 n.1. Specifically, they contend that, because the Quasar Commitment Letter defines
a “default” as a “failure to punctually pay the loan,” a default under the Quasar Commitment Letter constitutes a
default under the Quasar Note, permitting ASB to cure that default. See id. Assuming that it is appropriate to consider
the terms of the Quasar Commitment Letter, which is expressly referenced in the Intercreditor Agreement, the section
on which the Defendants rely merely states that the loan documents will contain standard language regarding defaults,
including language providing that a failure to pay punctually constitutes a default. See Quasar Commitment Letter at
. Thus, the failure to pay the Quasar Note punctually is not a default pursuant to the Quasar Commitment Letter.
On the other hand, the Quasar Commitment Letter, which the Village Green Defendants signed, set forth conditions
on which Quasar would extend the loan. See id. at -. The Village Green Defendants, hence, could have defaulted
on the Quasar Commitment Letter, jeopardizing the making of the Quasar Loan.
Village Green Defendants than did the senior lienholders, including that, as junior lienholder, it
would be the last to be paid in the event of a default and stood to lose the most. See id. at 10-11.
3. Course of Performance
The Defendants finally rely on Quasar’s own conduct to bolster their interpretation of
section 13(b) of the Intercreditor Agreement, pointing out that Quasar acted in accordance with
that section in providing a “Notice of Event of Default” to ASB and CEI in the manner specified
in section 18 (certified mail, return receipt requested).
See Motion at 17-18; Intercreditor
Agreement at 7, § 13(b) & 9, § 18. They contend that Quasar’s own actions belie its argument that
section 13(b) did not apply. See id.
Quasar disputes that its “courtesy notice” to ASB of the default “somehow rewrites the
Intercreditor Agreement[,]” asserting that the Defendants inappropriately rely on evidence outside
of the four corners of that agreement. Opposition at 11. It points out that the agreement contains
an integration clause that provides, inter alia, that the agreement “shall not be amended or modified
in any manner, except by written agreement signed by all parties to this Agreement.” Id. at 12
(quoting Intercreditor Agreement at 9, § 19).
The Defendants correctly observe that “course of performance” evidence can be considered
absent a determination that contractual terms are ambiguous. See Reply at 5-6; Restatement
(Second) of Contracts (“Restatement”) § 202 & cmt. a (Am. Law Inst. 1981) (listing five “special
rules” of contractual interpretation that do not require a determination of ambiguity, two of which
pertain to course of performance); see also, e.g., Reed & Reed, Inc. v. Weeks Marine, Inc., 431
F.3d 384, 388 (1st Cir. 2005) (quoting comment g to Restatement § 202, in case involving
interpretation of contract pursuant to Maine law, for proposition that “‘[t]he parties to an agreement
know best what they meant,’ and thus the parties’ subsequent course of performance may be
instructive in contract interpretation”).
However, in this case, as in Weeks Marine, the Defendants’ evidence is not determinative
as a matter of law. See id. at 388 (import of conduct of plaintiff on which defendant relied to prove
contract’s meaning was itself unclear).
The two special rules pertinent to course of performance are:
(4) Where an agreement involves repeated occasions for performance by either
party with knowledge of the nature of the performance and opportunity for
objection to it by the other, any course of performance accepted or acquiesced in
without objection is given great weight in the interpretation of the agreement.
(5) Wherever reasonable, the manifestations of intention of the parties to a promise
or agreement are interpreted as consistent with each other and with any relevant
course of performance, course of dealing, or usage of trade.
Restatement § 202.
The first rule, set forth in subsection (4), is inapposite because the Defendants rely on a
solitary instance of conduct, Quasar’s giving of notice of the default at issue to ASB and CEI in
accordance with the notice/cure provisions of the Intercreditor Agreement. See Motion at 17-18;
Reply at 5-6; Restatement § 202 cmt. g (“The rule of Subsection (4) does not apply to action on a
single occasion or to action of one party only[.]”).
The Defendants rely on comment g’s further observation that, although the rule does not
apply to action on a single occasion, “in such cases the conduct of a party may be evidence against
him that he had knowledge or reason to know of the other party’s meaning[.]” Reply at 5;
Restatement § 202 cmt. g. However, given that subsection (4) is inapposite, I understand that
portion of comment g to mean that, if a contract is found ambiguous, extrinsic evidence of a single
instance of conduct may be admissible against a party. The Defendants do not argue that the
contract provision at issue is ambiguous. See Motion at 1.
Nor is application of the second rule, set forth in subsection (5), determinative in the
Defendants’ favor. Again, the Defendants point to a single instance of conduct rather than a
“relevant course of performance” or “course of dealing[,]” Restatement § 202(5). In any event,
drawing reasonable inferences in Quasar’s favor as nonmovant, Quasar asserts that it gave notice
to ASB and CEI in the manner contemplated in the Intercreditor Agreement as a courtesy. See
Opposition at 11.
For all of the foregoing reasons, I conclude that the Defendants fail to carry their burden
of demonstrating their entitlement to judgment on the pleadings on the basis that section 13(b) of
the Intercreditor Agreement plainly and unambiguously gave ASB the right to cure the breach of
the Quasar Note at issue.5
For the foregoing reasons, I recommend that the court DENY the Motion.
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 28th day of July, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
I do not reach Quasar’s additional argument, see Opposition at 12-13, that the Village Green Defendants lack standing
to seek judgment on the pleadings as to their counterclaims for declaratory judgment and breach of contract, see
Motion at 6-7.
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