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Sivantos, Inc. v. Nutech Hearing LLC

United States District Court, D. New Jersey

June 6, 2019

SIVANTOS, INC., Plaintiff,
v.
NUTECH HEARING LLC, PERRY A. WARD and MARK W. SILVER, Defendants.

          ORDER

          MADELINE COX ARLEO UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court by way of Plaintiff Sivantos Inc.'s (“Sivantos”) unopposed application for an entry of default judgment[1] pursuant to Federal Rule of Civil Procedure 55(b), ECF No. 10, against Defendant NuTech Hearing LLC, (“NuTech”);

         and it appearing that this action arises out of a breach of a series of agreements between Sivantos, a manufacturer of hearing aids, and NuTech, a Florida-based hearing aid retailer, see Compl. ¶¶ 15-34;

         and it appearing that on or about November 16, 2016, NuTech and Sivantos entered into a Loan Agreement, Compl. Ex. A, a Promissory Note, Compl. Ex. B, personal guaranties from NuTech's two members, Perry A. Ward and Mark W. Silver, Compl. Ex. C, a Security Agreement, Compl. Ex. D, and a Supply Agreement, Compl. Ex. F;

         and it appearing that under the Loan Agreement, Sivantos agreed to lend NuTech $550, 000, $400, 000 of which was disbursed on November 16, 2016, Compl. ¶ 12;

         and it appearing that in or about October 2017, NuTech ceased making payments under the Loan Agreement, Compl. ¶ 26;

         and it appearing that although the Loan Agreement provided NuTech a ten day grace period before nonpayment triggered an Event of Default, NuTech failed to cure its default within the grace period, and Sivantos informed NuTech that it was in default under the Loan Agreement, id. ¶ 27;

         and it appearing that pursuant to the terms of the Loan Agreement, Sivantos accelerated NuTech's obligations, such that $393, 845.68 immediately became due, id. ¶ 28;

         and it appearing that NuTech further failed to make payments under the Supply Agreement, resulting in an outstanding principal balance of $53, 082.97, id. ¶ 30;

         and it appearing that on February 23, 2018, Plaintiff filed a Complaint against NutTech and its two members, Perry A. Ward and Mark W. Silver, asserting claims of breach of the Loan Agreement, breach of the Promissory Note, seeking judgment on personal guaranties by Silver and Ward, breach of the Supply Agreement, breach of a Security Agreement, unjust enrichment, possession of collateral, and foreclosure of Sivantos's security interest, ECF No. 1;

         and it appearing that Defendants have failed to answer the Complaint or otherwise respond as of the date of this Order;

         and it appearing that Ward and Silver each filed for bankruptcy on May 1, 2018, and that Plaintiff therefore does not seek a default judgment against either Ward or Silver, Pl. Mem., ECF No. 10.1 at 5;

         and it appearing that Plaintiffs filed the present Motion for Default Judgment seeking judgment against NuTech only, in the total amount of $445, 606.33 comprised of: (1) $388, 963.36 due under the Loan Agreement; and (2) $56, 642.97 due under the Supply Agreement, Pl. Mem. at 11, and that Plaintiff further seeks permission to submit an application to recover its attorney's fees in accordance with § 8(a) of the Promissory Note;

         and it appearing that default judgment may only be entered against a properly-served defendant, see E.A. Sween Co., Inc. v. Deli Express of ...


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