United States District Court, D. South Carolina, Florence Division
DAVID T. TAYLOR, Plaintiff,
CIRE, LLC and ERIC J. CAUSEY, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, Magistrate Judge.
This action arises out of a sales agreement between Plaintiff and Defendants. Plaintiff asserts causes of action for breach of contract and breach of promissory note. Jurisdiction is proper pursuant to 28 U.S.C. § 1332. Presently before the court is Plaintiff's Motion for Summary Judgment (Document # 32). Defendants timely filed a response. Subsequently, counsel for Defendants requested to be and was relieved as counsel. Defendant Eric Causey was directed to inform the court of his intent to retain counsel or proceed pro se within thirty days of the order relieving counsel. Defendant Cire, LLC was notified that it could not represent itself as a corporate entity and was directed to retain counsel within the same period of time. Neither party has retained counsel.
A notice of hearing on the present motion was entered on January 16, 2015, setting a hearing for January 28, 2015, and reminding Defendant Cire, LLC that, as a corporate entity, it could not represent itself and must retain new counsel, and warning Cire, LLC that a failure to obtain counsel could result in a recommendation that default judgment be entered against it. Counsel for Plaintiff, Gerald Meek, Esq., was present at the hearing. Neither Causey nor any representation, legal or otherwise, for Cire, LLC appeared at the hearing. Thus, it appears that both Defendants have abandoned their defense of this action.
All pretrial proceedings were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e). This report and recommendation is entered for review by the district judge.
Until approximately May of 2011, Plaintiff David Taylor operated a business in Florence, South Carolina under the name Palmetto Hydraulic Engineering. Pl. Aff. ¶ 4 (Ex. to Pl. Motion). On May 12, 2011 Plaintiff entered into a sales agreement with Defendants. Pl. Aff. ¶ 4; Sales Agreement (Ex. to Pl. Aff.). In the sales agreement, Plaintiff agreed to sell Defendants substantially al of the assets of the business for $96, 000. Id . However, the asset list included in the sales agreement did not include all of the assets of which Defendants took ownership. Pl. Dep. 150 (Ex. to Def. Response). Defendants agreed to make a down payment on May 13, 2011, in the amount of $45, 000. Sales Agreement. The remainder of the $96, 000 was to be paid pursuant to a promissory note, signed by Defendant Causey. Id . Plaintiff testified that hundreds of emails and verbal dealings took place during the preparation of the sales agreement. Pl. Dep. 153-54.
On May 16, 2011, Defendant Causey signed a promissory note promising to pay Plaintiff the sum of $51, 000. Pl. Aff. ¶ 5; Promissory Note (Ex. to Pl. Aff.). Payment of the promissory note was to be made in thirty-five equal monthly installments of $1, 416 and one final payment of $1, 411. Id . The promissory note also provided that
a. Payments not made within 15 days of the due date would be subject to a late charge of 2% of said payment; and
b. Causey would be liable for any costs, including attorneys' fees and court costs, incurred for the collection of amounts not paid when due.
On May 19, 2011, Plaintiff received a check from Causey in the amount of $45, 000 for the down payment. Pl. Aff. ¶ 6. The check was returned unpaid for insufficient funds. Id .; Causey Dep. 43 (Ex. to Pl. Motion). As of the filing of the present motion, the $45, 000 had not been paid. Pl. Aff. ¶ 6.
Through email communications dated October 31, 2011, and November 4, 2011, Plaintiff agreed to sell Defendants a Ticino lathe and tooling for $20, 000. Pl. Aff. ¶ 7. Defendants took possession of the Ticino lathe and tooling. Id . Defendant Causey and Plaintiff agreed that, if Causey immediately paid $20, 000 of the previously agreed upon $45, 000 down payment for the assets of the business, Plaintiff would permit Causey to make monthly payments in the amount of $3, 000 for thirty-one months, on the remaining balance due under both the May 12, 2011, sales agreement and the agreement to sell the Tocino lathe and tooling. Id . However, neither Causey nor Cire, LLC paid the agreed upon $20, 000, which was a condition to restructuring the payments. Id.
As of the filing of the present motion, Plaintiff had received the following payments from Causey and/or Cire, LLC pursuant ...