United States District Court, D. New Hampshire
US Foods, Inc.
EBA Trust, Inc. D/B/A Everything But Anchovies and Maureen D. Bogosian
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
Foods, Inc. (“US Foods”) brought suit against EBA
Trust, Inc. d/b/a Everything But Anchovies
(“EBA”) and Maureen Bogosian seeking to recover
money for goods and services it provided to EBA under the
terms of an agreement. On September 6, 2017, the Clerk of
Court entered default against the defendants. Before the
court for a Report and Recommendation is U.S. Foods'
motion for default judgment pursuant to Federal Rule of Civil
Procedure 55(b)(2). For the reasons that follow, the court
recommends that the district judge grant the motion in part
and deny it in part.
default is entered and when the amount at issue is not a sum
certain, “the party must apply to the court for a
default judgment.” Fed.R.Civ.P. 55(b)(2); see also
KPS & Assocs., Inc. v. Designs by FMC, Inc., 318
F.3d 1, 19 (1st Cir. 2003). Before entering a default
judgment, the court “may examine a plaintiff's
complaint, taking all well-pleaded factual allegations as
true, to determine whether it alleges a cause of
action.” Ramos-Falcon v. Autoridad de Energia
Electrica, 301 F.3d 1, 2 (1st Cir. 2002) (quoting
Guirindongo Pacheco v. Rolon Morales, 953 F.2d 15,
16 (1st Cir. 1992)). The defaulted party is “taken to
have conceded the truth of the factual allegations in the
complaint . . . .” Ortiz-Gonzalez v. Fonovisa,
227 F.3d 59, 62-63 (1st Cir. 2002) (internal quotation marks
and citation omitted). The defaulted party does not, however,
“admit the legal sufficiency of those claims.” 10
James Wm. Moore, Moore's Federal Practice §
55.32[b] (3d ed. 2013). Therefore, before entering default
judgment, the court must determine whether the admitted facts
state actionable claims. See Hop Hing Produces Inc. v. X
& L Supermarket, Inc., No. 12-cv-1401-AFF-MDG, 2013
WL 1232919, at *2 (E.D.N.Y. Mar. 4, 2013); E. Armata,
Inc. v. 27 Farmers Market, Inc., No. 08-cv-5212-KSH,
2009 WL 2386074, at *2 (D.N.J. July 31, 2009).
virtue of its default, the defendants concede the following
facts alleged in the complaint: U.S. Foods, a Delaware
Corporation with its principal place of business in Illinois,
is a food service distributor to various restaurants,
healthcare and hospitality facilities, government operations,
and educational institutions. On or about July 19, 2012, U.S.
Foods entered into a Customer Account Application and
Agreement (the “Credit Agreement”) with EBA, a
limited liability company from New Hampshire, to supply it
with various food-related products and services in return for
payment for such products and services. In addition,
Maureen Bogosian, a Vermont resident, signed the Credit
Agreement as guarantor of EBA's obligations under the
Agreement. See doc. no. 1-1 at 3.
to the Credit Agreement, U.S. Foods provided goods and
services to EBA. Despite invoicing EBA for its goods and
services, U.S. Foods did not receive payment. When EBA failed
to pay, Bogosian, as guarantor, was required to satisfy
EBA's debt. She failed to do so.
Foods brings four claims against EBA and one claim against
Bogosian: (1) Breach of contract against EBA (Count I); (2)
Breach of contract against Bogosian (Count II); (3)
“Statement on Account” against EBA (Count III);
(4) ”Goods Sold” against EBA (Count IV); and (5)
Unjust Enrichment against EBA (Count V). U.S. Foods seeks
$137, 604.32 in damages for the outstanding amount owed to it
by the defendants under the Credit Agreement, plus an
additional award of $12, 384.39 in interest, which it asserts
represents a rate of 1.5% per month from May 2017 through
October 30, 2017, the date U.S. Foods filed its motion for
default judgment. U.S. Foods also seeks an award of $11,
291.14 in attorneys' fees and costs, as well as interest
from October 31, 2017 until the date it collects on the
amount the defendants owe.
Breach of Contract against EBA (Count 1)
Delaware law,  the elements of a claim for breach of
contract are: (1) the existence of a contract between the
parties, whether express or implied; (2) a breach of an
obligation imposed by the contract; and (3) resulting damage
to the plaintiff. Micro Focus (US), Inc. v. Ins. Serv.
Office, Inc., 125 F.Supp.3d 497, 500 (D. Del. 2015).
Upon review of U.S. Foods' complaint and the incorporated
Credit Agreement, the court concludes that U.S. Foods has
adequately alleged each of these elements in the present
Delaware law, a valid and enforceable contract requires:
“(1) the intent of the parties to be bound; (2)
sufficiently definite terms; and (3) consideration.”
Kyle v. Apollomax, LLC, No. 12-152-RGA, 2013 WL
5954782, at *2 (D. Del. Nov. 1, 2013) (citing Otto v.
Gore, 45 A.3d 120, 138 (Del. 2012)). U.S. Foods has
adequately pled the existence of a binding contract between
itself and EBA. In its complaint, U.S. Foods alleges that the
Credit Agreement between itself and EBA constitutes a valid
and binding contract. Pursuant to the language of the Credit
Agreement, U.S. Foods agreed to supply various food and
food-related products and services to EBA. In return, EBA
agreed to be bound by the terms of the Credit Agreement and
pay all charges invoiced for such goods and services. The
Credit Agreement was signed and executed by EBA on July 19,
2012. Based on the record before the court, the Credit
Agreement became a valid and binding contract at that time.
Thus, the district judge should find that the first element
of a breach of contract claim is satisfied as to EBA.
Foods has also adequately pled that EBA breached the Credit
Agreement. As mentioned above, EBA agreed to be bound by the
terms of the Credit Agreement and pay all charges set forth
in each invoice. U.S. Foods asserts that it supplied goods
and services to EBA and rendered invoices to EBA for the
delivery of said goods and services. EBA failed to pay U.S.
Foods the outstanding balance owed on such invoices. When
accepting these allegations as true, U.S. Foods has pled
sufficient facts to establish that EBA committed ...