Two Old Hippies, LLC v. Catch the Bus, LLC, CIV 10–0459 JB/RLP.

• Decision Date: 18 August 2011
• Docket Number: No. CIV 10–0459 JB/RLP.,CIV 10–0459 JB/RLP.
• Citation: 807 F.Supp.2d 1059
• Parties: TWO OLD HIPPIES, LLC, Plaintiff, v. CATCH THE BUS, LLC, Gary Mack and Fallon Mack, Defendants.
• Court: U.S. District Court — District of New Mexico

807 F.Supp.2d 1059

TWO OLD HIPPIES, LLC, Plaintiff,

v.CATCH THE BUS, LLC, Gary Mack and Fallon Mack, Defendants.

No. CIV 10–0459 JB/RLP.

United States District Court, D. New Mexico.

Aug. 18, 2011.

Thomas P. Gulley, Rebecca L. Avitia, Bannerman & Johnson, PA, Albuquerque, NM, for Two Old Hippies, LLC.

Catch the Bus, LLC, Alamogordo, NM, Defendant pro se.

Gary Mack, Alamogordo, NM, Defendant pro se.Fallon Mack, Alamogordo, NM, Defendant pro se.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion for Summary Judgment to Set the Amount of Damages and Memorandum in Support, filed June 1, 2011 (Doc. 56) (“Summary Judgment Motion”); (ii) the Plaintiff's Motion to Grant its Summary Judgment Motion and to Amend Default Judgment Against Catch the Bus, LLC (Doc. 51) to Add a Damages Amount and Attorneys' Fees to the Judgment, filed June 30, 2011 (Doc. 59) (“Motion for Attorneys' Fees”); and (iii) the Plaintiff's Amended Motion to Grant its Summary Judgment Motion and to Amend Default Judgment Against Catch the Bus, LLC (Doc. 51) to Add a Damages Amount and Attorneys' Fees to the ‘Judgment, amending its Motion for Damages and Attorneys' Fees to request treble damages, filed July 27, 2011 (Doc. 68) (“Amended Motion for Damages and Attorneys' Fees”). The primary issue is whether the Court should award Plaintiff Two Old Hippies, LLC, $416,184.42 in trebled damages, and $24,427.90 in attorneys' fees and costs. The Court grants the motions in part and denies them in part. The Court reduces the advertising fees from the requested compensatory award, because Two Old Hippies received the benefit of its advertising. The Court awards Two Old Hippies $116,818.14 in compensatory damages. Because Two Old Hippies has not set forth allegation or evidence supporting its request for treble damages, the Court will not award Two Old Hippies treble damages at this time. Because the affidavit Two Old Hippies submitted in support of its attorneys' fees request did not separate out the fees and costs for the work performed on Two Old Hippies' unsuccessful claims, the Court requires that Two Old Hippies submit more detailed billing information so that the Court may properly assess Two Old Hippies' Attorneys' fees and costs. The Court will hold a hearing to determine whether Two Old Hippies is entitled to statutory damages and the amount of Two Old Hippies' reasonable attorneys' fees.

FACTUAL BACKGROUND

The Court previously entered its Default Judgment Against Defendant Catch the Bus, LLC, filed March 11, 2011 (Doc. 51) (“Default Judgment”). Consequently, the Court takes as true the allegations in Two Old Hippies' Complaint for Breach of Contract, Breach of Warranty, Violation of the New Mexico Dealers Franchising Act, Violation of the New Mexico Unfair Practices Act, Violation of the Colorado Consumer Protection Act, Negligent Misrepresentation, and Rescission. See Doc. 1 (“Complaint”).

Moreover, Catch the Bus did not respond to Two Old Hippies' Summary Judgment Motion. Because Catch the Bus failed to file a written opposition to the motion for summary judgment, it could be deemed to have consented to the granting of the Summary Judgment Motion. See D.N.M.LR–Civ. 7.1(b) (“The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.”); D.N.M.LR–Civ. 7.6(a) (“A response must be served within fourteen (14) calendar days after service of the motion.”). Furthermore, because Catch the Bus has not filed a timely written response contesting any of the paragraphs in Two Old Hippies' statement of the undisputed facts, the Court can take the facts as Two Old Hippies has stated them. D.N.M.LR–Civ. 56.1(b) states in relevant part:

A memorandum in opposition to the motion must contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the opposing party relies, and must state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted.

D.N.M.LR–Civ. 56.1(b). Because Catch the Bus has not “specifically controverted” any of Two Old Hippies' stated facts, the Court may deem them admitted. Nevertheless, because the United States Court of Appeals for the Tenth Circuit has encouraged district courts to decide motions for summary judgment on the merits, see Woods v. Roberts, No. 94–3159, 1995 WL 65457, at *2 (10th Cir.1995) (“[T]his circuit has expressed concern that pro se litigants not have their suits dismissed on summary judgment merely because they have failed to comply with the technical requirements involved in defending such a motion.” (citing Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991)); Hancock v. Okla. City, 857 F.2d 1394, 1396 (10th Cir.1988); Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir.1985) ( “The rights of pro se litigants require careful protection where highly technical requirements are involved, especially when enforcing those requirements might result in a loss of the opportunity to prosecute or defend a lawsuit on the merits.”) (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.1984)), and because Catch the Bus is proceeding pro se, the Court will consider Two Old Hippies' Summary Judgment Motion on the merits rather than defaulting Catch the Bus for procedural violations. In the end, however, Catch the Bus has not contested any of Two Old Hippies' factual assertions and there is nothing in the record before the Court that suggests—with the exception of some minor details—that Two Old Hippies' factual assertions are not sound or that they lack factual support. As such, the issues are not in material dispute and what remains for decision is whether Two Old Hippies is entitled to judgment as a matter of law.

In July 2009, Two Old Hippies purchased a restored Volkswagen Bus from Catch the Bus for $41,424.00 (“Bus # 1”). Complaint ¶ 9, at 2 (“In July 2009, TOH contracted to purchase a restored VW bus from CTB for $41,424....”). See Bus # 1 Invoice at 2, filed June 23, 2010 (Doc. 8–1) (estimating a price of $41,424.00 for Bus # 1).¹ In October 2009, Two Old Hippies purchased a second restored Volkswagen bus from Catch the Bus for $33,624.00 (“Bus # 2”). Complaint ¶ 11, at 2 (“In October 2009, TOH contracted to purchase a second restored VW bus from CTB for $33,624....”). See Bus # 2 Invoice at 2, filed June 23, 2010 (Doc. 8–2) (estimating a price of $33,624.00 for Bus # 2). ² The sum of the purchase price of Bus # 1 and Bus # 2 totals $75,048.00. See Complaint ¶ 12, at 2 (alleging this fact). Catch the Bus guaranteed Two Old Hippies one-hundred percent satisfaction with the buses and that the buses would be “ready to go” on delivery “whether for daily driver or for cross-country trips.” Complaint ¶¶ 13, 14 at 2.

Two Old Hippies planned to use Bus # 1 in its business and incurred $2,779.34 ³ in design and graphics expense for Bus # 1, and give away Bus # 2 in a business promotion to an entrant who won Bus # 2 in the promotion. See Bedell Aff. ¶ 8, at 2; Summary Judgment Motion ¶ 4, at 2 (setting forth this fact); Complaint ¶ 17, at 2 (alleging this fact). Two Old Hippies informed Catch the Bus of the intended uses of the buses before the purchases of the buses. See Bedell Aff. ¶ 9, at 2; Summary Judgment Motion ¶ 5, at 2 (setting forth this fact); Complaint ¶ 18, at 3 (alleging this fact). After Catch the Bus delivered Bus # 1 to Two Old Hippies, Bus # 1 was not safely operable, and Two Old Hippies discovered, upon having mechanics examine Bus # 1, that it had many serious mechanical and physical defects. See Bedell Aff. ¶ 10, at 2; Summary Judgment Motion ¶ 6, at 2 (setting forth this fact); Complaint ¶ 19, at 3 (alleging this fact). Because of the many serious mechanical and physical defects, Two Old Hippies has never been able to use Bus # 1. See Bedell Aff. ¶ 13, at 2; Summary Judgment Motion ¶ 9, at 2 (setting forth this fact); Complaint ¶ 22, at 3 (alleging this fact). Because of the many serious mechanical and physical defects, Two Old Hippies has spent more than $3,240.68 in repair and towing costs on Bus # 1 to attempt to make it safely operable, but despite the repairs, Bus # 1 is not safely operable. See Bedell Aff. ¶ 17, at 3; Summary Judgment Motion ¶ 13, at 3 (setting forth this fact); Complaint ¶ 26, at 3 (alleging this fact).

After Catch the Bus delivered Bus # 2, Two Old Hippies conducted a business promotion to give away Bus # 2 at an advertising expense of $21,910.00 and awarded the bus to its winning entrant, who resided in California. See Bedell Aff. ¶ 11, at 2; Summary Judgment Motion ¶ 7, at 2 (setting forth this fact); Complaint ¶ 20, at 3 (alleging this fact). After Catch the Bus delivered Bus # 2 to Two Old Hippies's winning entrant, the entrant and subsequently Two Old Hippies determined that Bus # 2 was not operable, and had many serious mechanical and physical defects. See Bedell Aff. ¶ 12, at 2; Summary Judgment Motion ¶ 8, at 2 (setting forth this fact); Complaint ¶ 21, at 3 (alleging this fact). Because of the many serious mechanical and physical defects, Two Old Hippies reacquired Bus # 2 from its winning entrant for $33,624.00 cash, making the total amount paid for Bus # 2 $67,248.00 and the total for both buses $108,672.00. See Complaint ¶ 23, at 3 (alleging this fact). The cost of transporting Bus # 2 to the contest winner was $243.00. See Bedell Aff. ¶ 15, at 2; Summary Judgment Motion ¶ 11, at 2 (setting forth this fact); Complaint ¶ 24, at 3 (alleging this fact). The cost of transporting Bus # 2 back to Two Old Hippies was $1,384.00. See Bedell Aff. ¶ 15, at 2; Summary Judgment Motion ¶ 11, at 2 (setting forth this fact); Complaint...