United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
Ningbo Beter Lighting Co., Ltd. asserts a breach of contract
claim against defendant Unique Arts, LLC based on Unique
Arts' failure to pay for lighting and related products
sold by plaintiff. Before the court is plaintiff's motion
for summary judgment, seeking $374, 531.90 in damages for
unpaid invoices and $312, 596.99 in prejudgment interest.
(Dkt. #19.) Defendant's response to plaintiff's
motion was due on May 6, 2016. As of the date of this
opinion, defendant has yet to respond. While the court will,
therefore, enter judgment in plaintiff's favor as to
liability, finding plaintiff established a breach of
contract, plaintiff's submission on damages is not
sufficiently supported for the court to enter a damages
award. Accordingly, the court will hold a telephonic status
conference on September 26, 2016, to determine whether
plaintiff can supplement with adequate proof of all its
damages, or whether a notice of and evidentiary hearing on
default judgment on October 3, 2016, is more appropriate.
Beter Lighting (“Ningbo”) is a Chinese
manufacturer of lighting products. In 2005, Ningbo
established a business relationship with Unique Arts. At the
time, Ningbo's president and shareholder, Peter Lu, met
Unique Art's president, Ati Goknur, at a trade show in
Hong Kong. After that meeting, Unique Arts began to send
orders to Ningbo for lighting products. Most of those orders
were sent by email.
receipt of an order, Ningbo would send Unique Arts a pro
forma invoice, listing the goods ordered and the prices for
those goods. If Unique Arts agreed to the quoted prices, it
would sign the invoice and return it to Ningbo, usually by
email. Ningo would then ship the ordered products along with
the signed invoice. Unique Arts admitted in its responses to
interrogatories that it incurred the obligations to pay
Ningbo totaling $1, 119, 544.61 for goods Ningbo shipped to
Unique Arts during the entire period of the parties'
business relationship. However, Unique Arts' discovery
responses contained a spreadsheet showing total payments in
the amount of $1, 044, 630.59.
2011, Ningbo and Unique Arts also entered into a written
contract that made Unique Arts the exclusive sales
representative for Ningbo products with Home Depot. At that
time, the Agreement memorialized that Unique Arts owed Ningbo
$362, 103.81 in unpaid invoices. Since entering into that
Agreement, Ningbo has received: (1) in December 2011, a $5,
000 payment on the debt acknowledged in the 2011 Agreement;
(2) $74, 431.80 in payments on invoices that post-date the
2011 Agreement; and (3) $44, 506.83 in commissions for
selling Ningbo products to Home Depot.
the above transactions above cause Unique Arts to acknowledge
that it still owed $30, 407.19 to Ningbo. In response, Ningbo
contends that Unique Arts double counted the $5, 000 payment
referenced above. Moreover, Ningbo contends that Unique
Art's spreadsheet does not contain $600, 102.73 in
additional invoices and $254, 968.00 in additional payments.
Based on these invoices and payments, Ningbo contends that
Unique Arts owes $380.541.09. Moreover, Ningbo contends that
the 2011 Home Depot Agreement underreported Unique Arts'
liability at that time by $70, 000.
when a plaintiff's motion for summary judgment goes
unopposed, a plaintiff is not entitled to summary judgment
unless it establishes that there is no issue of material fact
with respect to the elements it must prove and that it is
therefore entitled to judgment as a matter of law.”
HSBC Bank USA, N.A. v. Townsend, 793 F.3d 771, 796
(7th Cir. 2015) (citing Hotel 71 Mezz Lender LLC v.
Nat'l Retirement Fund, 778 F.3d 593, 601-02 (7th
Cir. 2015); Johnson v. Gudmundsson, 35 F.3d 1104,
1112 (7th Cir. 1994)). Here, plaintiff has established -- as
Unique Arts appears to concede in its discovery responses and
Ninghbo's unchallenged evidence on summary judgment shows
-- Unique Arts' breach of the parties' contract (or,
rather, contracts) by failing to pay the various invoices.
Still, plaintiff's submission as to damages owed due to
that breach is not adequate.
detailed above, plaintiff's proposed facts and supporting
materials fail to explain its assertion that Unique Arts owes
it $380, 541.09. In particular, Ningbo provides no
explanation of the 21 invoices apparently missing from Unique
Arts' records, despite all of the invoices pre-dating the
2011 Agreement at which time the parties were in agreement as
to the amount owed. Instead, Peter Lu, one of Ningbo's
shareholders, simply lists these new debts in his declaration
without attaching any documentation in support of
this claim. (Lu Decl. (dkt. #22) ¶ 10.) With this bare
information, the court has no basis for determining whether
these additional invoices were accounted for in the amount
listed in the 2011 Agreement or covered by payments. At
minimum, the court needs a more thorough accounting to enter
judgment in plaintiff's favor on the amount requested.
in its brief in support of summary judgment, Ningbo states
that it seeks prejudgment interest in the amount of $312,
596.99. Here, again, Ningbo provides no explanation
for that amount. In particular, plaintiff does not explain
the interest rate used, whether the interest was compounded,
or even the legal basis for an award of prejudgment interest.
Absent more information, the court cannot sustain that award
the court will hold a telephonic conference on September 26,
2016, at 10:00 a.m. to determine whether plaintiff can
clarify its damages request. If not, the court will hold an
evidentiary hearing on damages on October 3, to determine the
proper amount due.