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PACIFICORP CAPITAL, INC. v. TANO

February 27, 1995

PACIFICORP CAPITAL, INC., Plaintiff, against TANO, INC., Defendant.


The opinion of the court was delivered by: ALLEN G. SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 This action involves a claim of breach of a lease under which plaintiff, PacifiCorp Capital, Inc. ("PacifiCorp"), leased computer equipment to defendant, Tano, Inc. ("Tano"). Pending before the Court are plaintiff's motion for summary judgment and defendant's cross motion to dismiss the complaint. For the reasons set forth below, plaintiff's motion for summary judgment is granted and defendant's motion to dismiss is denied.

 I. BACKGROUND

 PacifiCorp is a Virginia corporation with its principal place of business in Virginia. It is the successor in interest by merger to Ceres Capital corporation. Defendant is a New York corporation with its principal place of business in New York.

 On October 20, 1989, PacifiCorp and Tano entered into a master lease agreement (the "Lease") under which plaintiff agreed to lease certain IBM computer equipment to defendant in return for monthly rental payments.

 Section 16 of the lease provided that failure to make any payment when due, unless cured within five days of notice by the lessor, constituted a default. The lease further provided that in the event of default, Tano as lessee, would be liable for unpaid rentals to the date of the declaration of default, plus the stipulated loss value of the equipment as set out in the Lease Schedules. Tano would also be liable for all reasonable attorney's fees and court costs incurred in collecting the amount due.

 On October 20, 1989, PacifiCorp and Tano entered into schedule 001 to the Lease, under which Tano leased certain IBM computer equipment at a monthly rental of $ 1,930 plus the applicable sales tax of $ 110.98 per month for a period of 48 months.

 On December 26, 1989, the parties entered into schedule 002 to the Lease, covering an IBM printer. Defendant was required to pay a monthly rental of $ 195 per month plus the applicable tax of $ 13.16 per month for three months, with the same rent to continue on a month to month basis until the return of the equipment.

 It is not disputed that Tano failed to make payments under either schedule after March 1992 and also failed to pay two invoiced late charges. On January 18, 1993, PacifiCorp sent notice of default to Tano; the notice declared the lease in default if Tano failed to cure. Defendant did not pay the amounts due *fn1" and on January 18, 1993, plaintiff filed the complaint in this action.

 Plaintiff alleges that on January 18, 1993, the date of the declaration of default, defendant owed $ 55,589.45, the stipulated loss value of the equipment under schedule 001 (71% of the total lessor's price of $ 78,295). Plaintiff further alleges that defendant owed $ 22,684.70 under schedule 001 for the missed payments from March 1992 through January 1993 and $ 2,081.60 under schedule 002 for overdue rental payments for the months of April 1992 through January 1993. Plaintiff, thus, alleges damages of $ 78,274.15, plus attorney's fees of $ 2,574.70 and court costs of $ 120, a total of $ 80,068.85.

 Defendant moves to dismiss on the grounds that (1) the complaint fails to state a claim against defendant upon which relief can be granted, (2) Plaintiff failed to serve predicate notices, specifically a separate notice to cure and notice of default, thereby failing to meet a condition precedent to the commencement of this action, and (3) the amount in controversy is alleged to be less than fifty thousand dollars exclusive of interest and costs, and, accordingly, that this Court lacks jurisdiction of this diversity action.

 II. DISCUSSION

 A. Summary Judgment ...


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