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TIBCO SOFTWARE, INC. v. JAMES JOSEPH CO.

United States District Court, N.D. Illinois, Eastern Division


June 25, 2004.

TIBCO SOFTWARE, INC., Plaintiff,
v.
JAMES JOSEPH CO., Defendant.

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. ยง 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, 2004.

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 amount.

20040625

© 1992-2004 VersusLaw Inc.



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