United States District Court, D. Nevada
before the court is plaintiff CH2E Nevada, LLC's
(“CH2E”) “motion for default
judgment.” (ECF No. 131). Defendant American Combustion
Technologies of California, Inc. (“ACTI”) has not
filed a response, and the time to do so has passed.
the court has already granted CH2E's motion for default
judgment. (ECF No. 130). Accordingly, the only
matter left to resolve is the calculation of damages pursuant
to FRCP 55(b). See Fed. R. Civ. P. 55(b).
support of its damages calculation, CH2E has submitted a
declaration by its managing director/chief operating officer,
James Kostura, and a copy of the underlying purchase
agreement (“agreement”) between CH2E and ACTI.
(ECF Nos. 131-1, 131-2). ACTI entered into the agreement to
purchase two pyrolysis units (the “units”) from
CH2E, each capable of “processing 3.125 tons of
shredded tire per hour for 24 hours a day.” (ECF No.
131 at 2).
4 of the agreement, entitled “Time for Completion,
” provides that in order to complete the sale, ACTI
“shall satisfy each of the Milestones in accordance
with the schedule and time set forth in Section 4 of Exhibit
A (the ‘Timeline').” (ECF No. 131-2 at 4).
Section 8.1.2 of the agreement provides that failure to
complete the sale in compliance with the Timeline constitutes
a “Seller Default” by ACTI. Id. at 5.
8.2.3 of the agreement provides that “[u]pon a Seller
Default, [CH2E] shall be entitled, at its option, to . . .
terminate this  Agreement, in whole or in part, for all or
any portion of the Equipment, with immediate effect upon
written notice . . .” Id.
agreement also contains a “Process Warranty for
Pyrolysis and Liquefaction System” (the “process
warranty”) which provides that “the Equipment is
warranted by [ACTI] to provide the throughput and product
yields indicated in the chart below.” Id. at
16. The process warranty chart states that the units would
operate 24 hours per day, at a rate of 3.125 tons per hour
per system, and process 75 tons of tire per system per day.
The agreement further provides that if the units:
in any way fail to conform to this Purchase Agreement and
[CH2E] requires replacement of such defective item, [ACTI]
shall, at its expense, promptly replace the nonconforming
item and pay for all related expenses . . . If [ACTI] fails
to timely deliver replacement Equipment, [CH2E] may replace
them with items from a third party and charge [ACTI] the cost
thereof and/or have the right to deduct these costs from the
Id. at 21.
invoice provided by ACTI demonstrates that it paid CH2E at
least $9, 804, 000.00 pursuant to the agreement to purchase
the units. (ECF No. 131-3); see also (ECF No.
131-1). However, between November 2013 and October 2014, ACTI
failed to properly repair or replace the units, which had
failed to operate at the warranted levels. (ECF No. 131-1).
As a result, CH2E incurred at least $2, 078, 649.91 in costs
paid to third parties in its attempt to cure the defective
and non-conforming units. (ECF No. 131-1); see also
(ECF No. 131-4).
on November 12, 2014, counsel for CH2E provided written
notice to ACTI that ACTI was in default under the agreement,
CH2E was electing to terminate the agreement, and ACTI was
obligated to provide a refund of certain amounts paid. (ECF
No. 131-1). The letter also noted that ACTI had breached the
process warranty and reserved all rights to seek appropriate
relief. Id. ACTI responded on November 18, 2014, and
refused to honor its obligations under the agreement.
CH2E filed the instant suit to recover its damages. During
the course of litigation, the court awarded CH2E $3, 020 in
attorneys' fees relating to a motion to compel and
ordered ACTI to pay this sum within 30 days. (ECF No. 84).
CH2E requests that the court add this sum to CH2E's total
damages award for ACTI's failure to pay the
attorneys' fees award. (ECF No. 131).
therefore requests that the clerk enter judgment in the
amount of $11, 885, 669.91, which represents the $11, 882,
649.91 owed for ACTI's breaches of the agreement and the
unpaid $3, 020.00 in attorneys' fees awarded by the
court. (ECF No. 131). Because ACTI has not disputed
CH2E's calculation of damages, and because such
calculation comports with the terms of the agreement (and the
court's previous order granting attorneys' fees), the
court finds that CH2E was damaged in the amount of $11, 885,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiffs
motion for default judgment (ECF No. 131) ...