OVES Enterprise, SRL v. NOWwith Ventures, Inc.

Background

OVES Enterprise, SRL sued NOWwith Ventures, Inc., doing business as VideoShops, over unpaid software-development invoices. The parties’ Professional Services Agreement required NOWwith to pay OVES $54 per hour for services provided. OVES and at least six software engineers and programmers performed work from about May 22, 2023, through October 3, 2023. OVES alleged that NOWwith received and retained its invoices without objection, paid only four of nineteen invoices, and continued promising to pay the remaining balance.

The unpaid invoices totaled $289,764. OVES asserted claims for breach of contract, account stated, and quantum meruit. NOWwith was served with the summons and complaint but did not answer or otherwise appear. The Clerk entered a certificate of default, and OVES moved for default judgment under Federal Rule of Civil Procedure 55.

Jurisdiction and Liability

The court determined that it had subject-matter jurisdiction based on diversity of citizenship. The complaint initially did not identify the citizenship of OVES’s members, as required for a limited liability company. After receiving a declaration identifying both members as citizens domiciled in Romania, the court deemed the complaint amended to allege the necessary facts. The court also found personal jurisdiction over NOWwith based on its principal place of business in New York and the agreement’s consent-to-jurisdiction clause.

For a default judgment, well-pleaded factual allegations are treated as admitted, but the court must still determine whether those allegations establish legal liability. The court found that OVES adequately alleged all elements of breach of contract: a contract, OVES’s performance, NOWwith’s breach, and resulting damages. The court also found that OVES adequately alleged an account stated because it presented invoices, NOWwith retained them without objection, and NOWwith made partial payments and promised to pay the balance.

OVES did not seek default judgment on its quantum-meruit claim. The court deemed that claim abandoned, explaining that a valid written contract governing the same services ordinarily prevents recovery under a quasi-contract theory.

Damages and Fees

The court found that OVES’s evidence established that fifteen of nineteen invoices remained unpaid and that the unpaid invoices totaled $289,764. The court awarded that amount.

The court also awarded prejudgment interest under New York law at 9% per year. Because the invoices became due at different times, the court selected August 27, 2023, as a reasonable intermediate date and ordered interest from that date through the date of judgment.

The Professional Services Agreement required the prevailing party in litigation to receive reasonable attorneys’ fees and costs. The court found that provision sufficiently clear and awarded OVES $46,715.50 in attorneys’ fees. The court found the attorneys’ hourly rates and hours reasonable.

Disposition

Judge Lewis J. Liman granted OVES’s motion for default judgment. The Clerk of Court was directed to enter judgment for $289,764, plus 9% prejudgment interest accruing from August 27, 2023, and $46,715.50 in attorneys’ fees. The Clerk was also directed to close the motion and the case.