Construction Law Insights

Pro-Telligent, LLC v. Amex Int'l, Inc., 2020 U.S. Dist. LEXIS 64191 (E.D. Va. Feb. 28, 2020)

The United States Agency of International Development (“USAID”) awarded Amex International, Inc. (“Amex”) a contract, portions of which Amex subcontracted to Pro-Telligent. Pro-Telligent completed its work and invoiced Amex, who, in turn, invoiced USAID for Pro-Telligent’s work. By invoicing USAID, Amex certified that prior payments had been made to Pro-Telligent from previous payments received by Amex from USAID and that timely payments would be made from the proceeds covered by Amex’s then current payment applications. Amex received progress payments from USAID. Despite Pro-Telligent’s multiple demands for payment, Amex did not pay Pro-Telligent. Amex owed Pro-Telligent $279,660.27.

On December 30, 2019, Pro-Telligent sued Amex for breach of contract, unjust enrichment, constructive trust, and conversion. Amex was served on January 7, 2020. Amex did not file a responsive pleading. On January 30, 2020, Pro-Telligent requested entry of default as to Amex, which was entered by the Clerk of Court the next day. On February 7, 2020, the District Court ordered Pro-Telligent to file a motion for default judgment, an accompanying memorandum, and a notice of hearing for February 28, 2020. Pro-Telligent complied and appeared at the hearing, but Amex did not appear at the hearing.

The magistrate judge recommended that that the court find that it has subject matter jurisdiction, service of process was accomplished, that the Clerk of Court properly entered a default as to Amex, and that Amex had notice of the proceedings. Applying D.C. law, the magistrate also recommended that the court find that Pro-Telligent established a breach of contract, unjust enrichment/quantum meruit, constructive trust, and conversion causes of action against Amex. On Pro-Telligent’s breach of contract cause of action, the magistrate recommended that the court award Pro-Telligent $279,660.27 in contract damages, deny Pro-Telligent’s request for attorney’s fees because the subcontract did not contain an attorney’s fees provision, award Pro-Telligent $941.79 in costs, and award Pro-Telligent post-judgment interest at the statutory rate. As to Pro-Telligent’s money damages, the magistrate recommended that the court enter an order imposing a constructive trust over the funds owed to Pro-Telligent by Amex and granting Pro-Telligent’s request for a permanent injunction requiring that any funds that Amex currently holds under the temporary restraining order, or any other identifiable funds received for work performed by Pro-Telligent, be paid to Pro-Telligent or that Amex retain, freeze, and escrow all such funds.

The District Court did not adopt the magistrate’s recommendation with respect to Count II for unjust enrichment, because an express contract governed the issue of Amex’s nonpayment, but adopted all other aspects of the report and recommendation.

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