Sushi Avenue Incorporated v. Philbrick's Fresh Market, LLC

Filing 17

ORDER re 15 Report and Recommendation: The plaintiff's motion for default judgment (document no. 14) is granted, in part, as outlined therein. So Ordered by Judge Joseph A. DiClerico, Jr.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Sushi Avenue, Inc.
v.

Civil No. 19-cv-428-JD

Philbrick’s Fresh Market, LLC

O R D E R
Sushi Avenue, Inc. brought suit against its former
customer, Philbrick’s Fresh Market, LLC, alleging claims for
breach of contract (Count I), account stated (Count II), and
unjust enrichment (Count III).

Philbrick’s filed its answer.

Philbrick’s counsel then withdrew from representation.
On June 11, 2019, Philbrick’s was ordered to have counsel
file an appearance on its behalf within twenty-one days or the
case would be referred to a judicial officer for an appropriate
sanction.

No appearance was filed on behalf of Philbrick’s

within the time allowed.

On August 12, 2019, the clerk of court

entered default against Philbrick’s.
Sushi Avenue filed a motion for default judgment supported
by a copy of its contract with Philbrick’s and the affidavit of
its president, Nay Hla.

In support, Sushi Avenue cited

Philbrick’s failure to obtain counsel and the default entered
against Philbrick’s.

It also argued that a hearing was not

necessary to determine damages because only arithmetic was
needed for that calculation and provided the amounts due
supported by the affidavit of Nay Hla.

Philbrick’s did not

respond to the motion.
The magistrate judge issued a report and recommendation on
the motion for default judgment.

In the report, the magistrate

found that the admitted facts supported Philbrick’s liability on
the breach of contract claim, Count I.

Because that claim was

viable and Sushi Avenue sought the same damages under Counts II
and III, the magistrate judge recommended that the court dismiss
Counts II and III.

With respect to damages, the magistrate

judge noted the difference between the amount sought in the
complaint and the amount demanded in the motion and applied the
rule that the damages awarded under a default judgment cannot
differ from the amount sought in the complaint.

Fed. R. Civ. P.

54(c).
The magistrate judge recommends that the court enter
default judgment on Count I, dismiss Counts II and III, and
award $80,939.90 in damages, which is the amount sought in the
complaint.

The magistrate also recommends that the court deny

Sushi Avenue’s request for attorneys’ fees and costs without
prejudice to filing a motion for that relief after entry of
default judgment.

Neither party filed an objection to the

report and recommendation.
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Discussion
When a report and recommendation is filed by a magistrate
judgment and after the time for written objections has passed, a
judge of the court must make a de novo determination as to any
parts of the report and recommendation to which there is an
objection.

28 U.S.C. § 636(b)(1).

“A judge of the court may

accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”

Id.

In

addition, the judge may receive additional evidence or return
the matter to the magistrate judge with instructions.

Id.

There being no objection by either party, no part of the
report and recommendation is subject to de novo review.

Based

on the facts alleged in the complaint and the proof of damages
provided in the affidavit of Nay Hla, the court agrees that
default judgment, as recommended, is appropriate in this case.

Conclusion
For the foregoing reasons, the report and recommendation
(document no. 15) is accepted and adopted.

The plaintiff’s

motion for default judgment (document no. 14) is granted, in
part, as follows:
(1) default judgment is granted in favor of Sushi Avenue on
its breach of contract claim, Count I;

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(2) the claims for account stated in Count II and unjust
enrichment, Count III, are dismissed;
(3) damages are awarded to Sushi Avenue in the amount of
$80,939.90; and
(4) if Sushi Avenue seeks an award of attorneys’ fees and
costs, it shall file a properly supported motion for that
purpose on or before October 18, 2019.
SO ORDERED.

______________________________
Joseph A. DiClerico, Jr.
United States District Judge
October 3, 2019
cc:

John K. Bosen, Esq.
Frederick B. Finberg, Esq.
Thomas P. Harlan, Esq.
Blair A. Harrington, Esq.
Philbrick’s Fresh Fish Market, LLC

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