ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS JULIE DOTTON AND KRP HOLDINGS, LLC AND AWARDING DAMAGES (Doc. 88) Plaintiff Busrel Inc. (“Plaintiff”) brings this action against Julie Dotton (“Ms. Dotton”), KRP Holdings, LLC (“KRP”), SBM Holdings, LLC (“SBM”), Jonathan Cannon (“Mr. Cannon”), Sean Gauthier (“Mr. Gauthier”), New England Development Corp. (“NEDC”), and Montrose Capital, LLC (“Montrose Capital”) (collectively, “Defendants”), alleging that Defendants improperly retained $7,950,000 of Plaintiff’s payment after Plaintiff and KRP agreed to cancel a contract whereby KRP would supply Plaintiff with personal protective equipment (“PPE”). On May 4, 2022, this court entered a default against Defendants Ms. Dotton and KRP pursuant to Federal Rules of Civil Procedure 37 and 55(a). (Doc. 79.) Pending before the court are Plaintiff’s motion for default judgment against Ms. Dotton and KRP pursuant to Federal Rule of Civil Procedure 55(b)(2) and its request for attorney’s fees and costs pursuant to Federal Rule of Civil Procedure 37.1 (Doc. 88.) On August 2, 2022, the court held an evidentiary hearing on Plaintiff’s motion before taking the matter under advisement. Neither Ms. Dotton nor KRP appeared at the hearing. Plaintiff is represented by Judith A. Archer, Esq., Abigail Fay Schwarz, Esq., and Victoria Vance Corder, Esq. Defendants Ms. Dotton and KRP are self-represented. I. Findings of Fact. Plaintiff is a Canadian company incorporated under the laws of the province of Quebec with its principal place of business in Montreal, Canada. KRP is a limited liability company incorporated under the laws of New York with its principal place of business in Buffalo, New York. At all relevant times, Ms. Dotton was the President of KRP. Plaintiff was an official provider of PPE to the Canadian provinces of Quebec and Alberta during the COVID-19 pandemic. In April 2020, Andrew Moar and Mr. Gauthier introduced Nicolas Giguere, an independent sales agent for Plaintiff, to Ms. Dotton of KRP for the purposes of procuring PPE. Mr. Gauthier held himself out to Plaintiff as KRP’s head of logistics. Thereafter, Mr. Giguere and Ms. Dotton exchanged text messages, emails, and calls to discuss the PPE, Ms. Dotton’s suppliers, and price quotes. During conversations in early April 2020, Ms. Dotton represented that she could procure large amounts of PPE for Plaintiff “due to her unique connections[.]” (Doc 88-25 at 9.) Specifically, Ms. Dotton represented that she had a special relationship with a supplier in China that owned over one thousand companies and was state-owned, implying that Plaintiff would have access to a reliable supply of quality PPE if it purchased the PPE through Ms. Dotton and KRP. In an email exchange and by telephone with Plaintiff, Ms. Dotton made the following representations: “ Our supplier is state owned. So we have no issue getting materials out”; “[our] China partner owns the factories state owned. He owns over 1000 companies”; and “[t]hey will not take any orders from anyone else you will have multiple plants direct for you.” (Doc. 87 at 4, 16). Mr. Giguere confirmed, “OK so all the factory controll[ed] by [the] Ch[i]nese government and you know them?” and Ms. Dotton responded, “Yes…The owner is supplying me and my group.” (Doc. 88-13 at 3-4.) Ms. Dotton represented to Mr. Giguere that her prices were not as low as other suppliers because her supply came from state-owned factories in China but reassured him that her relationships were legitimate. She wrote: We won’t be able to do as cheap because government raised raw materials and they are controlling price now. It’s not a horrible increase…The gentleman we are working with in China worked for President George W[.] [B]ush. He…wants us to come through for people so he is PUSHING this because of our friendship. That’s what you get the price you get. This is why we really can come through at those levels. Id. at 4, 8. Ms. Dotton’s representations regarding Chinese factories and her connections to them were false and were part of a scheme to induce Plaintiff to enter into a multi-million-dollar contract to purchase PPE, which Ms. Dotton could not deliver and never intended to deliver. On April 14, 2020, in reliance on Ms. Dotton’s representations, Plaintiff entered into a contract with Ms. Dotton and KRP to purchase two million NIOSH N95 masks and ten million SMS 3, 3-ply masks in exchange for payment of $8,200,000 USD (the “Bill of Sale”). (Doc. 88-14.) The Bill of Sale required that all PPE purchased be certified by the Food and Drug Administration and Conformite Europeenne and that all Surgical Type 3 masks have bacterial filtration and particulate filtration equal to or more than 98 percent /160 MMHG fluid resistance/D.P less or equal 5.0 MMHG/Inflammability Class 1. On April 15, 2020, in connection with the Bill of Sale, the parties entered into an escrow agreement (the “Escrow Agreement”) whereby Plaintiff would send $8,200,000 to an Escrow Agent who would “disburse the Deposit from the Escrow Account as directed by Seller immediately following Escrow Agent’s receipt of the Deposit.” (Doc. 88-15 at 3.) Before wiring money to the Escrow Agent, Mr. Giguere asked Ms. Dotton to confirm the quantity of PPE she could deliver by April 17, 2020. She replied, “Until I have money I will not have a schedule.” (Doc. 87 at 5, 22) (internal quotation marks omitted). Mr. Giguere responded in writing, “on it with the wire you’ll have it I promise[] in a couple of minutes.” Id. (internal quotation marks omitted). Ms. Dotton replied, “No one will move without money []” and insisted on “ 100 percent prepayment” for Plaintiff’s PPE order. Id. (internal quotation marks omitted). In reliance upon Ms. Dotton’s representations and promises, Plaintiff wired $8,200,000 USD to the Escrow Agent on April 15, 2020. On April 17, 2020, the Escrow Agent released the $8,200,000 USD payment to a Citibank account in Albertson, New York owned by SBM, a limited liability company, pursuant to Ms. Dotton’s instructions. SBM is not a party to the Bill of Sale or the Escrow Agreement. Ms. Dotton did not inform Plaintiff that its money was released to SBM, which later represented to Plaintiff that it was Ms. Dotton’s and KRP’s financial advisor.2 After Plaintiff wired the $8,200,000 USD payment to the Escrow Agent, Ms. Dotton wrote to Mr. Giguere, “Okay tell me exactly what you need [t]o shangai fri or sat for emergency.” Id. at 7, 29 (internal quotation marks omitted). He responded, “I paid for 2 million NIOSH and 10 million[] 3[-]ply before 17th [April 17] Friday.” Id. (third alteration in original) (internal quotation marks omitted). Instead of providing a delivery schedule for the PPE set forth in the Bill of Sale, KRP wrote to Mr. Giguere: “Hello do you want the 20 or do you want more. Let me know.” Id. at 7, 30. Mr. Giguere responded on April 16, 2020: “No we want to have the schedule delivery for what has been paid and for the kn95 [a product for which Busrel was considering purchasing but had not yet placed an order] we need the full procurement sheet to move forward.” (Doc. 87 at 7, 30) (alteration in original) (internal quotation marks omitted). Ms. Dotton responded with a delivery schedule for the masks, stating, “Here is what I can do. I can do 30 million first shipment arrives Tuesday Wednesday then every 2-3 days and you will have full order within 7 days. I’ll give it to you no extra money but next order we have to do .31 [meaning 31 cents per mask]. Deal?” Id. at 7, 31 (alteration in original) (internal quotation marks omitted). Mr. Giguere responded, “Deal type 3. Approved. .31 next one?” id. at 8, 31, and Ms. Dotton responded, “Yes. 50m,” and “Your mask[s] will start coming Wednesday.” Id. (internal quotation marks omitted). Mr. Giguere attempted to confirm the origin of the masks, asking, “[do the] 3[-]ply come from [C]hina or [M]exico?” Id. at 8, 32 (internal quotation marks omitted). Ms. Dotton responded, “Both[,]” but “ it will be China first.” Id. (internal quotation marks omitted). On April 18, 2020, while awaiting the first delivery of masks, Mr. Giguere asked Ms. Dotton if she could provide “another 50 million” 3-ply masks within seven days in addition to the thirty million she had agreed to deliver. (Doc. 87 at 8, 33) (internal quotation marks omitted). Ms. Dotton wrote, “I can have 30 million to either site for Canada [i]n 10 days.” Id. (internal quotation marks omitted). This statement contradicted her earlier statement that she could deliver thirty million masks within seven days. On or before April 18, 2020, Ms. Dotton provided another delivery schedule for the thirty million 3-ply masks, delivering ten million each on April 22, April 27, and April 30. Mr. Giguere asked Ms. Dotton to confirm that she would be able to procure the thirty million masks for which Plaintiff had previously paid. Ms. Dotton responded, “Yes but it’s going to be more,” id. at 8, 36 (internal quotation marks omitted), indicating that the price had increased. She claimed that she could only provide masks at the previously negotiated price if Plaintiff paid for a three-month supply up front. Mr. Giguere responded, “We agreed for 30 million[] [.]28 [cents a mask] and 50 million[] .31 [cents a mask],” and told her, “It wasn’t in your proposal the 3 months in advance.” Id. (third and fifth alteration in original) (internal quotation marks omitted). Ms. Dotton and Mr. Giguere continued to negotiate a price for a second order of masks prior to delivery of the first order but could not agree to a price or a delivery schedule. During the course of her negotiations with Plaintiff, Ms. Dotton claimed that she was unable to speak on the phone because she was “on w[ith] military officials[,]” id. at 9, 40 (internal quotation marks omitted), and when “Mr. Giguere asked for a video of a factory with his name on it to prove to him that Ms. Dotton had legitimate connections to factories in China, she refused and claimed that people could be ‘killed’ for doing that and that doing so was ‘treason[.]‘” Id. at 9-10, 40. On April 21, 2020, after the parties could not agree to a second order, Ms. Dotton wrote, “We can refund your money and part ways…. I’m working out the refund with them now[]” and “ [w]e are refunding you. We can’t meet your timeframe[.]” (Doc. 88-18 at 2-3.) Plaintiff’s President, Louis Morin, spoke with Ms. Dotton and the parties agreed to cancel the Bill of Sale and KRP agreed to refund Plaintiff’s money. A day later, on April 22, 2020, Ms. Dotton directed Mr. Cannon to disburse funds in the following manner: $600,000 to “Sean Gauthier” for “consultant per contract”; $50,000 to “VWA Advisors” for “payment per contract”; and $42,924 to “Woods Oviatt” for “payment per contract” and “Legal[.]” (Doc. 88-7.) Plaintiff did not receive any masks for the $8,200,000 USD it paid. On April 23, 2020, a representative from Plaintiff emailed Ms. Dotton to request proof of the wire transfer to confirm the $8,200,000 USD refund was in progress. On April 24, 2020, Ms. Dotton responded, “We have requested the refund. I was clear when I told you it would take several days. You will receive it back as soon as possible.” (Doc. 87 at 11, 50.) Ms. Dotton did not send proof of the wire transfer. On April 30, 2020, Plaintiff still had not received the refund, so its representative contacted Ms. Dotton again to request proof of the steps she had taken to refund Plaintiff’s money. Without providing proof that a refund was in process, she wrote: As I have stated before we have made the request. I was transparent when I told you that it was going to take some time. Your order was in the production process. Unfortunately you didn’t approve of the dates and timeframes. We are working with the organization to refund your money. We are committed to providing this to you. (Doc. 88-21 at 2.) On April 29, May 1, May 8, and May 15, 2020, Ms. Dotton directed Mr. Cannon to make additional payments to General Corporate Services, Inc., VWA Advisors, Montrose Capital, and Woods Oviatt. (Doc. 87 at 11-12,
54-56, 58.) On May 26, 2020, when Plaintiff still had not received its refund, Plaintiff’s representative wrote to Ms. Dotton: “According to your email of last week, we were to receive the refund by May 23…. Can you sen[d] me a copy of the wire transfer with the swift number, I will verify with our bank. We need this to be resolved today.” (Doc. 88-22 at 3.) She responded the same day: “I am waiting on the docs from the bank as soon as get them I will send them on to you.” Id. at 2. She did not, however, send a copy of the wire transfer. On the same day, Ms. Dotton again emailed Mr. Cannon and directed him to wire $250,000 to “Montrose Capital” for “settlements” and $100,000 to “VWA Advisors” for “payment per contract” and “MS[.]” (Doc. 88-8.) On May 27, 2020, Plaintiff’s representative emailed Ms. Dotton, writing: “Hi, we did not receive anything ! Is there an issue?” to which she responded, “No issue. I am waiting on the bank. The account is in Australia, it’s the time zone difference.” (Doc. 88-22 at 2.) The following day, on May 28, 2020, Plaintiff’s representative contacted Ms. Dotton again: Hi Julie, It was supposed to be May 23, and now you tell me the funds are in Australia! We transfer the funds to your [U.S.] accounts and you said it was transfer[r]ed to China. What Australia has to do with it? Any way a wire do[es]n’t take 36 hours to be completed, If it was done yesterday in Australia, you should have a copy right now. And the funds should hit our bank account today! Send me proof of transfer[.] Id. Ms. Dotton did not respond or send proof of the wire transfer. Ms. Dotton’s representations that she had initiated a wire transfer to Plaintiff and that she was waiting on documents from a bank in Australia were false and were intended to delay Plaintiff from taking prompt action, including legal action, to obtain a refund of its payment. On June 9, 2020, Ms. Dotton emailed Plaintiff’s representative: “Please see attached letter [from] our financial advisor who is facilitating the extension of our LOC [letter of credit].” (Doc. 88-23 at 2.) Mr. Cannon, the author of the attached letter and Ms. Dotton’s financial advisor, stated that he was SBM’s Managing Director and that: Ms. Dotton informed me of the need to refund your payment to you due to the issues with the manufacturer timeframes and pricing. We started the process several weeks ago to advance the KRP a LOC. The transaction should be completing this week. The deposit will go into our corporate account and the $8.2m will be wired to your account immediately upon receipt. Id. at 3. At the time, Plaintiff was not aware that SBM had received Plaintiff’s funds from the Escrow Agent because Ms. Dotton and KRP concealed this information from Plaintiff. Representations by Ms. Dotton that KRP was obtaining a line of credit to send the refund to Plaintiff were false and were intended to delay Plaintiff from taking prompt action to obtain a refund of its payment. On June 16, 2020, Plaintiff’s representative received an email from Mr. Cannon stating that a “good faith payment” would be made while SBM and KRP continued to “work with [their] bank and [their] letter of credit advance for the remainder” of Plaintiff’s money. (Doc. 87 at 16, 78) (alterations in original) (internal quotation marks omitted). Mr. Cannon added, “It is, as it always has been[,] our commitment to return the funds to you.” Id. (internal quotation marks omitted). On June 18, 2020, Plaintiff received a payment of $250,000 USD. (Docs. 88-12 at 4, 17; 88-24 at 2.) The payment came from Montrose Capital LLC, a Michigan limited liability company whose registered agent is Mr. Gauthier. On July 10, 2020, Mr. Cannon told Plaintiff that it would be repaid pursuant to a payment plan as follows: “I have been advised starting the week of July 20th we can pay 500k for two weeks, then we can pay $1,000,000 per week until the rest is paid up.” (Doc. 87 at 16, 81) (internal quotation marks omitted). On July 22, 2020, the proposed week for the first payment of $500,000 USD, Plaintiff’s representative emailed Mr. Cannon to ask when Plaintiff should expect to receive the wired money. Mr. Cannon responded the following day and stated: “We are providing you with all the documentation on the financial transaction that allows KRP to refund your monies. Due to COVID everything is being delayed.” Id. at 17, 83 (internal quotation marks omitted). Mr. Cannon informed Plaintiff’s representative that a line of credit would be extended by KRP by an unidentified source on either July 27 or July 28 and that Plaintiff would receive a “letter of intent” following the extension of the line of credit. Id. Mr. Cannon’s representations that KRP was receiving a line of credit to repay Plaintiff proved inaccurate as Plaintiff did not receive payments according to the repayment plan. On July 31, 2020, Mr. Cannon sent Plaintiff’s representative an email discussing a transaction between a French bank and two entities that would aid Mr. Cannon in refunding Plaintiff. Mr. Cannon represented that he had been provided an MT 760, a type of SWIFT message, and was waiting on an MT 799 message from the French bank. Mr. Cannon wrote, “[w]e are at the mercy of international compliance.” (Doc. 87 at 17, 86) (alteration in original) (internal quotation marks omitted). Mr. Morin responded to Mr. Cannon’s email noting that he knew that Mr. Cannon’s statements were false because an MT 799 precedes an MT 760 and “[t]he MT[]799 swift message will have no impact on the financial situation of an individual since it is sent before the funds are frozen. So, what are we waiting for? Should we expect [] payment this week?” Id. at 18, 87 (third alteration in original) (internal quotation marks omitted). On August 14, 2020, Mr. Cannon sent an email to counsel for Plaintiff providing the following update: 1. SBLC transaction is moving forward, hopefully funding by end of next week or early the following week[.] 2. Trade transaction — we have confirmed with the sending bank that funds will wired on Aug. 24th without fail, it is already locked in the system to be sent, Bond transaction — we have initiated 50m today and another 200m will be done by Tuesday. 3. Once delivered we can pull funds in 72 hours. I will be able to send confirmation of delivery and then we can send funds once they are released. Julie [Dotton] will get this done, Thank you and we appreciate your patience[.] Id. at 18, 90 (second alteration in original). On August 16, 2020, Ms. Dotton confirmed in an email that Plaintiff would receive between $500,000 and $1,000,000 USD that week, however, no payment was made. On September 24, 2020, Mr. Cannon sent an email claiming that repayment was delayed because “[t]he Bond transaction we were working on had to be listed on Bloomberg and they needed to file a few other things in order to get it deliverable. We are working on that now.” Id. at 19, 94 (internal quotation marks omitted). In the same email, Mr. Cannon stated that he would send a letter of intent that day and would be able to provide Plaintiff with a new payment schedule. Mr. Cannon did neither. On October 1, 2020, Mr. Cannon told Plaintiff that a payment schedule was forthcoming and that he had “secured a One Billion USD BCL for [Ms. Dotton] to start filling some orders and we have BOTH the Sblc and Bond deliveries taking place in the next day or so.” Id. at 19, 96 (internal quotation marks omitted). On October 29, 2020, Plaintiff sent Ms. Dotton and KRP a demand letter requesting repayment of Plaintiff’s money in full within a week. Id. at 20, 100. The money was not repaid. On November 6, 2020, Ms. Dotton responded to Plaintiff’s counsel with an email stating, “We have a transaction closing next week. My attorney will reach out to you and we can establish the repayment structure for your client. Thank you for your patience.” (Doc. 87 at 20, 101) (internal quotation marks omitted). No attorney contacted Plaintiff’s counsel. Ms. Dotton’s statements were false and intended to delay Plaintiff from taking legal action, which could have included emergency motions for an order allowing prejudgment attachment of Ms. Dotton’s and KRP’s accounts and assets. Ms. Dotton and KRP owe Plaintiff a refund of at least $7,950,000 USD, by their own admissions. II. Conclusions of Law and Analysis. A. Standard of Review. Under Fed. R. Civ. P. 55, obtaining a default judgment against a party is a two-step process. See New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005); see also Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) (“Federal Rule of Civil Procedure 55 is the basic procedure to be followed when there is a default in the course of litigation.”). “The first step, entry of a default, formalizes a judicial recognition that a defendant has, through its failure to defend the action, admitted liability to the plaintiff.” City of New York v. Mickalis Pawn Shop, LLC, 645 F. 3d 114, 128 (2d Cir. 2011). “The second step, entry of a default judgment, converts the defendant’s admission of liability into a final judgment that terminates the litigation and awards the plaintiff any relief to which the court decides it is entitled, to the extent permitted by Rule 54(c).” Id. Before entering a default judgment, the court is “required to determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law[.]” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). Because a defendant who fails to answer or otherwise defend a complaint is “ deemed to have admitted all well-pleaded allegations in the complaint pertaining to liability[,]” id. at 81 n.1, in conducting its liability analysis, the court is “ required to accept all of the [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor[.]” Id. at 84 (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). However, “[e]ven when a default judgment is warranted based on a party’s failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true.” Credit Lyonnais Sec. USA, Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). “The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Id. This inquiry is also two-fold: the court must first “determin[e] the proper rule for calculating damages” on the particular claim. Id. The court then “assess[es] [the] plaintiff’s evidence supporting the damages to be determined[.]” Id. “ There must be an evidentiary basis for the damages sought by plaintiff, and a district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence.” Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012). Regardless of the evidence presented, “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P. 54(c); see also Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007) (“By limiting damages to what is specified in the ‘demand for judgment,’ [Rule 54(c)] ensures that a defendant who is considering default can look at the damages clause, satisfy himself that he is willing to suffer judgment in that amount, and then default without the need to hire a lawyer.”). 1. Choice of Law Analysis. Plaintiff asserts that both the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) and New York common law govern its breach of contract claim and that New York law governs its remaining claims for fraudulent inducement, unjust enrichment, and breach of the implied covenant of good faith and fair dealing. The CISG is a “self-executing agreement between the United States and other signatories,” including Canada.3 Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1027 (2d Cir. 1995). The CISG “applies to contracts of sale of goods between parties whose places of business are in different States[]…when the States are Contracting States[.]” United Nations Convention on Contracts for the International Sale of Goods [CISG], art. 1 §1(a), adopted Apr. 11, 1980, 1489 U.N.T.S. 3. “By agreement, parties may exclude application of the CISG by expressly providing in the contract that the law of a non-CISG jurisdiction applies or that the CISG does not control.” Ajax Tool Works, Inc. v. Can-Eng Mfg. Ltd., 2003 WL 223187, at *2 (N.D. I11. Jan. 30, 2003) (citing CISG art. 6); see also Transmar Commodity Grp. Ltd. v. Cooperativa Agraria Industrial Naranjillo Ltda., 721 F. App’x 88, 89 (2d Cir. 2018) (“‘Generally, the CISG governs sales contracts between parties from different signatory countries’ unless the parties clearly indicate an intent to be bound by an alternative source of law.”) (quoting Delchi, 71 F.3d at 1027 n.1). The Supremacy Clause binds states to the treaties of the United States. U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land[.]“). Thus, under any state’s law, “the CISG is applicable to contracts where the contracting parties are from different countries that have adopted the CISG.” Asante Techs. v. PMC-Sierra, Inc., 164 F. Supp. 2d 1142, 1150 (N.D. Cal. 2001); see also 200 A.L.R. Fed. 541 (“Simply stating in the choice of law clause that the law of a particular state will govern the contract is not sufficient, since the CISG, as a federal law of the United States, is also a part of the law in every state.”). In cases where the parties to a contract for the international sale of goods have indicated that the law of a particular state will apply, courts have found that absent “clear language indicating that both contracting parties intended to opt out of the CISG,” the parties’ chosen state law does not displace the CISG. Asante, 164 F. Supp. 2d at 1150 (finding that the CISG is the law of both British Columbia and California and that therefore the parties did not clearly intend to opt out of the CISG); see also BP Oil Int’l, Ltd. v. Empresa Estatal Petroleos de Ecuador, 332 F.3d 333, 337 (5th Cir. 2003) (finding that the parties’ choice of Ecuadorian law did not displace the CISG because the CISG is the law of Ecuador); St. Paul Guardian Ins. Co. v. Neuromed Med. Sys. & Support, GmbH, 2002 WL 465312, at *3 (S.D.N.Y. Mar. 26, 2002) (selecting German law to govern a contract didn’t displace the CISG because the CISG is the law of Germany); Ajax Tool Works, Inc., 2003 WL 223187, at *2-3 (holding that the parties’ choice of Ontario law did not exclude the CISG because the CISG is the law of Ontario). In this case, the parties’ Bill of Sale was a contract for the sale of goods, specifically, COVID-19 PPE, and their repayment plan contemplated a refund of the sale price. The Bill of Sale was signed by Plaintiff in Canada and by Ms. Dotton and KRP in New York. (Doc. 88-14 at 4.) Both Canada and the United States are signatories to the CISG. Accordingly, the CISG applies to Plaintiff’s contract claims. The Bill of Sale designates New York law as controlling: “This Bill of Sale will be construed in accordance with and governed by the laws of the State of New York.” Id. at 3. The Bill of Sale does not, however, clearly indicate that the parties intended to opt out of the CISG. The CISG therefore controls Plaintiff’s contract-based claims for breach of contract and breach of the implied covenant of good faith and fair dealing. Because the court is sitting in diversity, Plaintiff’s remaining claims for fraud and unjust enrichment are governed by New York law. See Gasperini v. Ctr. for Humans., 518 U.S. 415, 427 (1996) (“Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.”). 2. Whether Plaintiff is Entitled to a Default Judgment on Its Breach of Contract Claim. a. Whether Ms. Dotton and KRP are Liable for Breach of Contract. “A breach of contract claim under the CISG contains the same elements as those under New York State law.” Ningbo Yang Voyage Textiles Co., Ltd. v. Sault Trading, 2019 WL 5399973, at *3 (E.D.N.Y. Sept. 10, 2019), report and recommendation adopted, 2019 WL 5394568 (E.D.N.Y. Oct. 22, 2019) (citing 24/7 Records, Inc. v. Sony Music Ent., Inc., 429 F.3d 39, 42 (2d Cir. 2005) (stating elements under New York law)). Specifically, “[a] plaintiff asserting a breach of contract claim under the CISG must show: (1) the existence of a valid and enforceable contract containing both definite and certain terms, (2) performance by plaintiff, (3) breach by defendant and (4) resultant injury to plaintiff.” Id. (internal quotation marks omitted). In this case there is a “valid and enforceable contract containing both definite and certain terms.” Pursuant to that contract, on April 14, 2020, Plaintiff contracted with Ms. Dotton and KRP to purchase: (a) 2 million NIOSH N95 masks and (b) 10 million SMS 3, 3-ply masks in exchange for payment of $8,200,000 USD. On April 15, 2020, Plaintiff, Ms. Dotton, and KRP entered into an Escrow Agreement providing for the transfer of $8,200,000 into an Escrow Account “as a deposit towards the purchase of the [PPE].” (Doc. 88-15 at 2.) In Ms. Dotton’s contemporaneous communications with Plaintiff’s representative, she provided a delivery schedule for the contracted-for PPE, indicating that she acknowledged her and KRP’s contractual obligation to provide the PPE at the agreed-upon price. Plaintiff has thus established the first element of its breach of contract claim against Ms. Dotton and KRP under the CISG. The second element of a breach of contract claim is Plaintiff’s performance. On April 15, 2020, Plaintiff wired $8,200,000 to the Escrow Agent, discharging its obligations under the Bill of Sale. (Docs. 88-12 at 2, 8; 88-25 at 18.) The Bill of Sale provides that the “Purchaser [Plaintiff] will pay the Purchase Price to the Seller by electronic funds transfer via escrow account or wire transfer” and states that the cost of the property to be provided by the “Seller” is “$8,200,000.00 USD.” (Doc. 88-14 at 2.) The Bill of Sale imposes no other obligations on Plaintiff as the “Purchaser.” Id. Plaintiff cites two forms of bank documentation demonstrating that a wire transfer in the amount of $8,200,000 was sent to the Escrow Agent on April 15, 2020. (Docs. 88-16; 88-17.) Plaintiff therefore performed its contractual obligations under the parties’ agreement. The third element of breach of contract under the CISG is a breach by Defendants Ms. Dotton and KRP. The CISG defines a breach of contract as “fundamental” if “it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract[.]” CISG art. 25. On April 21, 2020, Ms. Dotton told Plaintiff that she could no longer meet the contract’s price and delivery terms and would cancel the contract, writing, “ We are refunding you. We can’t meet your timeframe.” (Doc. 88-18 at 3.) She later confirmed again, “We will refund and part ways.” (Doc. 88-19 at 3.) Although Plaintiff agreed to cancel the Bill of Sale and have its money refunded on April 21, 2020, Plaintiff never received a full refund of the $8,200,000. (Docs. 87 at 10, 20
