Mangiardi Brothers Trucking, Inc. v. Dewey Environmental, LLC et al

Filing 31

///ORDER approving 29 Report and Recommendation; granting in part and denying in part 28 Motion for Default Judgment. Clerk to enter judgment against Dewey in amount of $78,751.70 in accordance with this order. Clerk to schedule damages hearing before the magistrate on the unjust enrichment and quantum meruit claims against Francis Harvey. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Mangiardi Brothers
Trucking, Inc.
v.

Civil No. 12-cv-481-JD

Dewey Environmental, LLC,
et al.
O R D E R
Mangiardi Brothers Trucking, Inc. (“Mangiardi”) brought suit
against Dewey Environmental, LLC (“Dewey”); Francis Harvey and
Sons, Inc. (“Francis Harvey”); Babcock and Wilcox Construction
Co., Inc. (“Babcock”); and Berlin Station, LLC (“Berlin Station”)
alleging claims arising out of unpaid invoices for Mangiardi’s
services in hauling hazardous waste from a construction site.
The clerk of court entered defaults as to Dewey and Francis
Harvey, and Mangiardi moved for a default judgment on its breach
of contract claim as to each entity under Federal Rule of Civil
Procedure 55(b)(1).1

The magistrate issued a report and

recommendation, concluding that Mangiardi’s motion for default
judgment on the breach of contract claim should be granted as to
Dewey but denied as to Francis Harvey.

Mangiardi objected to the

magistrate’s report and recommendation.

1

The court granted Babcock’s and Berlin Station’s motions to
dismiss on April 30, 2013.

Background
In the fall of 2011, Berlin Station hired Babcock as its
general contractor for the construction of a “biomass energy
plant” (the “Project”).

Berlin Station owns the property upon

which the Project was being constructed (the “Construction
Site”).
In November 2011, Babcock entered into an agreement with
Francis Harvey, under which Francis Harvey agreed to perform
certain site work for the Project.

Francis Harvey subcontracted

with Dewey to perform hazardous waste removal on the Project.
Dewey subsequently contacted and subcontracted with
Mangiardi to haul the hazardous waste materials from the
Construction Site.

Dewey agreed to pay Mangiardi $115 per ton of

waste hauled and payment was due within fourteen days after the
date of an invoice.

The terms of the agreement were confirmed

through an email between Dewey and Mangiardi.

Mangiardi alleges

that Dewey discussed the terms of the agreement with Francis
Harvey.
Mangiardi began performing the services required under the
contract with Dewey on December 1, 2011.

On December 5, 2011,

Mangiardi submitted its first invoice to Dewey in the amount of
$20,513.75.

Mangiardi received a check from Francis Harvey for

the full amount of the invoice on December 12, 2011.
2

Mangiardi continued to perform the services required under
the contract and submitted five more invoices to Dewey, totaling
$128,751.70.

When payment for the first of the five invoices was

not made within fourteen days, Mangiardi contacted both Dewey and
Francis Harvey.

Each promised that a payment would be made

shortly.
On January 9, 2012, Dewey wired $50,000 to Mangiardi.
Despite contacting Dewey and Francis Harvey on many occasions
since then, Mangiardi did not receive any further payment from
either company.
Mangiardi brought this action alleging claims against Dewey
and Francis Harvey for breach of contract, breach of the covenant
of good faith and fair dealing, unjust enrichment, quantum
meruit, restitution, and violation of New Hampshire’s Consumer
Protection Act, RSA 358-A:2.2

Dewey and Francis Harvey

defaulted, and the clerk of court ordered that Mangiardi submit a
motion for default judgment and, if appropriate under Federal
Rule of Civil Procedure 55(b)(1), an affidavit specifying
damages.

The clerk of court scheduled a damages hearing for July

3, 2013.

2

The claims for unjust enrichment, quantum meruit, and
restitution were also brought against Babcock and Berlin Station.
As mentioned above, those claims were dismissed as against those
entities in the court’s April 30, 2013, order.
3

Mangiardi filed a motion for default judgment pursuant to
Rule 55(b)(1), seeking a judgment in the amount of $78,751.70
jointly and severally against Dewey and Francis Harvey.

In its

motion, Mangiardi stated:
[T]he Plaintiff’s claim against the Defendants is one
of breach of contract arising from the Defendants’
failure to pay the invoices for services performed by
the Plaintiff, pursuant to the terms of the contract
between the parties, as set out in the Verified
complaint. The unpaid invoices total[] $78,751.70.
Mot. at ¶ 5.

Mangiardi further stated in its motion that it

“hereby waives its claim under the New Hampshire Consumer
Protection Act, RSA 358-A:2, and in consideration therefor,
requests that the default judgment enter forthwith pursuant to .
. . Rule 55(b)(1), and the damages hearing scheduled for July 3,
2013 be cancelled.”

Id. at ¶ 6.

The magistrate issued a report and recommendation on
Mangiardi’s motion.

In the report and recommendation, the

magistrate recommended granting the motion as to Dewey but
denying the motion as to Francis Harvey.

The magistrate noted

that even accepting all factual allegations in the complaint as
true, the complaint failed to allege a claim for breach of
contract as to Francis Harvey.

Mangiardi objected to the report

and recommendation in so far as it recommended denying
Mangiardi’s motion as to Francis Harvey.

4

Discussion
Federal Rule of Civil Procedure 55 establishes a two-step
process for a plaintiff to obtain a default judgment.

First,

“[w]hen 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.”

Fed. R. Civ. P. 55(a).

Second, after a

default has been entered against a defendant, and the defendant
fails to appear or move to set aside the default under Rule
55(c), a plaintiff may request that a default judgment be entered
against the defendant.

Fed. R. Civ. P. 55(b).

Rule 55(b)(1)

provides that “[i]f the plaintiff’s claim is for a sum certain or
a sum that can be made certain by computation, the clerk-on the
plaintiff’s request, with an affidavit showing the amount duemust enter judgment for that amount and costs against a defendant
who has been defaulted for not appearing.”

Fed. R. Civ. P.

55(b)(1).
Once default has been entered against a defendant, he is
“‘taken to have conceded the truth of the factual allegations in
the complaint as establishing the grounds for liability.’”
S.E.C. v. New Futures Trading Int’l Corp., 2012 WL 1378558, at *1
(D.N.H. Apr. 20, 2012) (quoting Ortiz-Gonzalez v. Fonovisa, 277
F.3d 59, 62-63 (1st Cir. 2002)).

However, “while a defaulting
5

party admits the factual basis of the claims asserted against it,
the defaulting party does not admit the legal sufficiency of
those claims.”

United States v. Simoneau, 2012 WL 6917071, at *1

(D.N.H. Dec. 20, 2012) (internal quotation marks and citation
omitted); see also Rolls-Royce plc v. Rolls-Royce USA, Inc., 688
F. Supp. 2d 150, 153 (E.D.N.Y. 2010) (“[A]fter default . . . it
remains for the court to consider whether the unchallenged facts
constitute a legitimate cause of action, since a party in default
does not admit conclusions of law.”) (internal quotation marks
and citations omitted).

Therefore, “default judgment is only

proper if the complaint contains well-pleaded factual allegations
establishing a valid cause of action.”

Champion v. SLM Corp.,

2011 WL 1375283, at *2 (E.D. Tex. Mar. 15, 2011); see also 10
James Wm. Moore, Moore’s Federal Practice § 55.32[1][b] (3d ed.
2011) (“A court may grant judgment by default only for relief
that may lawfully be granted on the well-pleaded facts alleged by
the claimant.”).
In the amended complaint, Mangiardi alleges that it entered
into a contract to perform hazardous waste removal on the Project
with both Dewey and Francis Harvey.

In support of its allegation

that Francis Harvey was a party to the contract, Mangiardi
alleges that “Dewey discussed Mangiardi’s terms with Francis
Harvey,” Am. Compl. ¶ 18, and that its first invoice was paid by
6

a check from Francis Harvey, see id. at ¶ 21.

Thus, although

Mangiardi alleges that it initially entered into a contract with
Dewey, it alleges that “Francis Harvey thereafter became a party
to the contract when it effectively approved the same and
submitted a payment to Mangiardi for the full amount of the first
invoice submitted to Dewey.”

Id. at ¶ 57.

The magistrate found that these allegations did not state a
claim for breach of contract against Francis Harvey.
agrees.3

The court

None of the facts alleged in the complaint supports the

existence of a contract between Mangiardi and Francis Harvey.
Although Mangiardi alleges that Dewey discussed the terms of the
contract with Francis Harvey, that allegation is insufficient to
establish that Francis Harvey manifested its assent to those
terms or to be bound by the agreement.

See Bel Air Assoc. v.

N.H. Dep’t of Health and Human Servs., 158 N.H. 104, 107-08
(2008) (“For a meeting of the minds to occur, the parties must
assent to the same contractual terms.

That is, the parties must

have the same understanding of the terms of the contract and must
manifest an intention, supported by adequate consideration, to be
bound by the contract.” (internal quotation marks and citation

3

The court reviews de novo the part of the magistrate’s
report and recommendation that has been properly objected to.
See Fed. R. Civ. P. 72(b)(3).
7

omitted); see also Chase Home for Children v. N.H. Div. for
Children, Youth and Families, 162 N.H. 720, 727 (2011).

In

addition, although Francis Harvey paid the first invoice,
Mangiardi has not explained how that payment obligated Francis
Harvey to pay future invoices or otherwise joined it as a party
to the agreement between Mangiardi and Dewey.
Accordingly, the court concludes, as did the magistrate,
that Mangiardi has not stated a claim for breach of contract
against Francis Harvey.

Mangiardi’s motion for entry of a

default judgment, however, concerned only the breach of contract
claim against Dewey and Francis Harvey.

Default judgment has not

yet been entered on Mangiardi’s claims for unjust enrichment
(Count III) and quantum meruit (Count V) against Francis Harvey.4

4

As discussed, in addition to the breach of contract claim,
Mangiardi also brought claims against Francis Harvey for
violation of the covenant of good faith and fair dealing (Count
II), unjust enrichment (Count III), restitution (Count IV),
quantum meruit (Count V), and violation of the New Hampshire
Consumer Protection Act, RSA 358-A:2 (Count VI). Mangiardi
waived its Consumer Protection Act claim in its motion for entry
of a default judgment. See Mot. at ¶ 6. Because the court
concludes that a contract did not exist between Mangiardi and
Francis Harvey, Mangiardi cannot be entitled to a default
judgment as to its claim for violation of the covenant of good
faith and fair dealing. Finally, restitution is not a separate
cause of action under New Hampshire law and is only a remedy for
unjust enrichment. See, e.g., Gen. Insulation Co. v. Eckman
Const., 159 N.H. 601, 620 (2010) (“A plaintiff is entitled to
restitution for unjust enrichment” if the plaintiff proves his
claim.) (internal citation and quotation marks omitted).
8

Therefore, Mangiardi is entitled to a damages hearing as to those
claims under Rule 55(b)(2).

Conclusion
For the foregoing reasons, after due consideration of the
objection filed, the court herewith approves the Report and
Recommendation of Magistrate Judge Landya B. McCafferty dated
August 7, 2013.

The clerk of court shall enter judgment against

Dewey in the amount of $78,751.705 in accordance with this order.

Therefore, only Mangiardi’s claims against Francis Harvey for
unjust enrichment and quantum meruit remain.
5

The magistrate recommended that the court award Mangiardi
$78,751.70, the amount sought in Mangiardi’s motion. On page 8
of the report and recommendation, the magistrate also noted that
“invoice number 6158 credits Dewey’s account $7,739.80. Thus,
the remaining balance for the unpaid invoices is $71,011.90.”
Mangiardi’s request for $78,751.70, however, already accounts for
the $7,739.80 credit to Dewey’s account. Therefore, the court
agrees with the magistrate’s recommendation to award Mangiardi
$78,751.70 in damages.
9

The clerk of court shall schedule a damages hearing before
the magistrate on the unjust enrichment and quantum meruit claims
against Francis Harvey.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
September 13, 2013
cc:

David Himelfarb, Esquire
Rebecca S. Kane, Esquire
Thomas J. Pappas, Esquire

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