United States District Court, D. New Hampshire
DiCLERICO, Jr., District Judge.
Outlets, LLC brought suit against Healthy Food Corporation,
d/b/a Frozurt, ("HFC") and Tai H. Pham after HFC
failed to pay rent due under a lease for commercial space in
Merrimack, New Hampshire, that is subject to a guaranty
signed by Pham. HFC brought a third-party complaint against
ThurKen III, LLC and ThurKen's manager, Richard E.
Landry, Jr., arising from the original lease agreement with
ThurKen. 17 Outlets moves for summary judgment on its claims
against HFC and Pham. HFC and Pham do not dispute that HFC
failed to pay rent but object to the motion for summary
judgment on the claim against Pham based on the guaranty,
which they claim is unenforceable.
judgment is appropriate when the moving party "shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). "A genuine dispute is one that a
reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of
the case." Flood v. Bank of Am. Corp., 780 F.3d
1, 7 (1st Cir. 2015). Reasonable inferences are taken in the
light most favorable to the nonmoving party, but unsupported
speculation and evidence that "is less than
significantly probative" are not sufficient to avoid
summary judgment. Planadeball v. Wyndham Vacation
Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015)
(internal quotation marks omitted).
purchased a four unit strip mall on June 1, 2012. Prior to
the purchase, ThurKen arranged to lease all four units. HFC
and Pham believe that ThurKen was under pressure to have the
four units in the business center leased by May 31, 2012, in
order to close on the purchase of the property. On May 23,
2012, Orange Leaf, a frozen yogurt business, decided not to
lease the space in the mall, as originally planned.
Landry, as manager for ThurKen, then contacted Tram Dang
about HFC leasing the space because she had expressed
interest in leasing space for a Frozurt store. On May 31,
2012, Tuan Dang signed a lease for commercial space in the
mall, on behalf of HFC d/b/a Frozurt, as president and
treasurer of HFC. ThurKen was the lessor, and Landry
signed the lease as manager of ThurKen. Under the terms of
the lease, HFC was required to pay monthly rent and other
amounts for a lease period of fifteen years.
same day, Pham signed an agreement titled "Unlimited
Guaranty." The guaranty stated that it was
provided "[t]o induce Landlord to enter into a certain
lease agreement of even or near date with Tram Dang dba
Frozurt (the Lessee'), for real property located in
Merrimack, New Hampshire." Pham "absolutely and
unconditionally guarantee[d] the full and punctual payment to
Landlord of all sums which may be presently due and owing and
of all sums which shall now and in the future become due and
owing to Landlord from the Lessee, under the Lease."
Pham also agreed to other provisions in the guaranty.
support of its motion for summary judgment, 17 Outlets
submitted a copy of the "Business Entity Summary"
for HFC filed with the Corporations Division of the Secretary
of State's Office for the Commonwealth of Massachusetts.
The Summary lists Tram Dang as president, treasurer,
secretary, and director of HFC. Although the Summary is
undated, counsel for 17 Outlets represents that the document
appeared on the Secretary of State's website on November
16, 2015. In response, HFC and Pham submitted a copy of a
"Statement of Change of Supplemental Information"
for HFC from the Secretary of State's Office, that is
dated May 3, 2012, that lists Tuan Dang as HFC's
president, treasurer, secretary, and director.
Outlets purchased the property from ThurKen on April 17,
2014, pursuant to a document titled "Assignment and
Assumption of Lease Agreements." After the purchase, HFC
failed to pay rent beginning in May of 2014. 17 Outlets
served a demand for rent and an eviction notice on HFC on
October 3, 2014. HFC has vacated the leased space.
II, Section 17(c)(i) states that in the event of default, the
stated fixed and additional rents become due and are required
to be paid. Section 17(c)(iii) imposes as liquidated damages
the deficiency between the amount of rent owed and the amount
the landlord received by re-letting the space. The lease also
provides for costs and attorneys' fees to the prevailing
party in proceedings under the lease. Part II, Section 38(f).
Outlets brings a claim of breach of contract against HFC and
a claim of breach of guaranty against Pham. HFC does not
contest the breach of contract claim against it. Pham
contends that ...