The History Department & Co v. Mertz

Opinion

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 THE HISTORY DEPARTMENT & CO., Case No. C20-5608-RSL 9

10 Plaintiff, ORDER REGARDING 11 v. PLAINTIFF’S RESPONSE TO COURT’S ORDER TO 12 JESSE MERTZ, et al., SHOW CAUSE 13 Defendants. 14

15 This matter comes before the Court on plaintiff’s response to the Court’s Order to Show 16 Cause (Dkt. # 25) and plaintiff’s filing of a Declaration of Miranda Keenan (Dkt. # 26). Having 17 reviewed the allegations of the complaint, plaintiff’s motion for default judgment, plaintiff’s 18 response to the Court’s Order, and the balance of the record, the Court finds as follows: 19 Plaintiff filed this action to obtain relief for alleged breach of contract and violation of the 20 Washington State Consumer Protection Act (“WCPA”). Although defendants were served with 21 the summons and complaint on November 18, 2020, Dkt. # 13, they still have not responded. 22 Default was entered against them on March 5, 2021. Dkt. # 16. The Court issued an Order to 23 Show Cause because it appeared that plaintiff overstated the principal judgment amount of 24 $106,676.55. Dkt. # 24 at 2–3. 25 In reviewing plaintiff’s response to the Court’s Order to Show Cause, the Court agrees 26 that plaintiff “is entitled to the benefit of [the] bargain,” Dkt. # 25 at 2, but plaintiff provides 27 only the following vague explanation of how that principle applies here: 28 1 Here the plaintiff had an expected profit from the entire transaction. Had Mertz not breached, plaintiff would have had a profit and not a loss. Plaintiff is entitled to the 2 benefit of its bargain. Had plaintiff been able to obtain replacement equipment at a 3 higher price, it would have been entitled to that price plus the profits. 4 Dkt. # 25 at 2. In other words, plaintiff appears to be claiming in its response that lost profits are 5 part of the requested principal judgment amount. “Lost profits are properly recoverable as 6 damages where (1) they are within the contemplation of the parties at the time the contract was 7 made, (2) they are the proximate cause of defendant’s breach, and (3) they are proven with 8 reasonable certainty.” Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 710 (9th 9 Cir. 1990) (quoting Larsen v. Walton Plywood Co., 65 Wn.2d 1, 15, modified, 65 Wn.2d 1 10 (1964)). Plaintiff filed a Declaration of Miranda Keenan, plaintiff’s principal, regarding the 11 damages at issue, but her statement that profit “dropped from $60,000 to a net loss of about 12 $3,000” fails to provide any detail on how these figures were calculated. Dkt. # 26 at 2, ¶ 5.1 13 Moreover, Ms. Keenan states that $106,676.55 is her “out-of-pocket cost for the machines,” 14 Dkt. # 26 at 3, ¶ 7, which is consistent with her previous declaration, Dkt. # 18 at 2, ¶¶ 4–5, but 15 this statement also indicates that the $60,000 figure was not used in plaintiff’s calculation of the 16 $106,676.55 principal judgment amount. It is altogether unclear how the out-of-pocket cost for 17 both machines would be equivalent to the benefit of the bargain. 18 Plaintiff’s evidence is inadequate for purposes of entering a default judgment in the 19 requested amount against defendants. See, e.g., Beck v. Pike, No. C16-0001JLR, 2017 WL 20 530354, at *4 (W.D. Wash. Feb. 9, 2017) (concluding that evidence of damages was inadequate 21 where plaintiff failed to provide an explanation or methodology for the amount of money he lost 22 as a result of defendant’s breach); Penpower Tech. Ltd. v. S.P.C. Tech., 627 F. Supp. 2d 1083, 23 1093 (N.D. Cal. 2008) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)) 24 (“Without a concrete method for determining provable damages, a monetary award is not 25 supportable.”). Plaintiff has thus far failed to properly substantiate its damages as the Federal 26 Rules of Civil Procedure and this Court’s Local Civil Rules require. Fed. R. Civ. P. 55; LCR 27 55(b)(2)(A). Plaintiff shall, within 30 days of the date of this Order, submit additional proof to 28 1 support the requested $106,676.55 principal judgment amount. The Clerk of Court is directed to 2 note a motion for default judgment (Dkt. # 17) on the Court’s calendar for July 6, 2021. 3 DATED this 3rd day of June, 2021. 4 5 A

6 Robert S. Lasnik 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28