The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge
REPORT AND RECOMMENDATION
This case is before the Court to make a determination on
Plaintiff TIBCO Software, Inc.'s submission in support of its
damages. This matter comes before this Court pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1 for a report and
recommendation. For the reasons set forth below, the Court finds
that Plaintiff should be granted damages in the amount of
$524,974.61 plus $187.14 per day for every day since April 16,
Plaintiff filed this collection action against Defendant The
James Joseph Company. The Honorable Suzanne Conlon granted
Plaintiff's motion for judgment of default, rendering Defendant's
motion for leave to answer and file a counterclaim moot. The
question of the amount of judgment for Plaintiff remains.
On July 10, 2002, Plaintiff and Defendant entered into a
written Consulting Services Agreement (the "Agreement"). Under
the terms of the Agreement, Plaintiff agreed to provide
consulting services and technical support to Defendant. The
parties further entered into a series of written agreements
through work orders. Over the course of time, Plaintiff sent
Defendant invoices for work performed, many of which remain unpaid or were
paid late. The amount due on the invoices is $379,602.71.
Pursuant to section 2 of the Agreement, Plaintiff is also
entitled to a service charge of one and one-half percent per
month on all invoices paid late. As of April 16, 2004, this
amount totaled $81,456.48. The parties have agreed that a daily
rate of $187.14 as a service charge for all days going forward
from April 16, 2004 should apply.
Additionally, Plaintiff may collect "all reasonable costs
(including reasonable attorneys' fees) incurred in collecting
past due amounts under [the] Agreement," pursuant to section 8 of
the Agreement. Plaintiff seeks $63,915.42 in attorneys' fees and
costs. The parties have conferred regarding this amount pursuant
to Local Rule 54.3 and have agreed that this is a reasonable
amount, should attorneys' fees be granted.
Defendant does not dispute the figures as calculated by
Plaintiff or the proof of these amounts. Rather, it claims that
the amount it owes should be off-set by commissions owed by
Plaintiff pursuant to a "companion agreement" entitled the
Non-Exclusive Joint Marketing Agreement. It also argues that the
amount it owes should be further reduced by amounts for sales
made by Plaintiff to Defendant's customer, Appleton Paper. The
Court finds that because Defendant did not (and is not able to)
file a counterclaim due to Judge Conlon's ruling granting the
motion for a default judgment, the amount it owes Plaintiff
cannot be reduced by these amounts.
Defendant also argues that the Agreement is unclear as to
attorneys' fees, because it states that "Licensee agrees to pay"
as opposed to "Client agrees to pay" where Defendant is defined
as the Client. However, the Court agrees with Plaintiff that
because the parties to this litigation are the only parties to the Agreement, it is clear that the use of
the word "Licensee" was a mere oversight or typographical error.
"Licensee" must refer to either Plaintiff or Defendant, and
because it is only possible for Defendant to owe Plaintiff money
for services performed due to the nature of the Agreement,
Plaintiff would be the only party that would incur expenses in
collecting past due amounts. It is clear from the Agreement as a
whole that "Licensee" was a typographical error, and the
provision should not be invalidated due to such an error.
Defendant must pay costs and attorneys' fees to Plaintiff.
Therefore, Plaintiff's submissions support a finding that
Defendant owes $379,602.71 for work performed; $81,456.48 for
services charges through April 16, 2004; $63,915.42 for
attorneys' fees and costs; and a continuing daily service charge
fee for every day after April 16, 2004.
For these reasons, the Court finds that Plaintiff's submissions
support its claim for damages in the amount of $524,974.61 plus
$187.14 per day for every day since April 16, 2004 and including
every day until a final judgment is entered in this matter, and
recommends that judgment be entered in favor of Plaintiff in such
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