NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-4271

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ROCHESTER DRUG COOPERATIVE INC

v.

GOODHEART PHARMACY INC; OBIOMA AGOUCHA; 

and DAMIEN AGOUCHA,

Appellants

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2:16-cv-01787)

District Judge: Honorable Timothy J. Savage

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 25, 2017

Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges

(Opinion filed: November 22, 2017)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

This is a dispute over money owed pursuant to two loan agreements. The District 

Court entered judgment in favor of the creditor, Appellee Rochester Drug Cooperative, 

Inc. (“RDC”), and against the debtors, GoodHeart Pharmacy, Inc. (“GoodHeart”) and 

Appellants Obioma and Damien Agoucha (the “Agouchas”).1 We will affirm.

I.

RDC is a distributor of pharmaceutical, health and beauty-aid products and 

services. It is based in New York. GoodHeart operates a retail pharmacy in Philadelphia. 

The Agouchas own GoodHeart.

RDC sued GoodHeart and the Agouchas (collectively, “Defendants”) in April 

2016. RDC alleged that in December 2012, the companies entered into a credit 

agreement whereby RDC would extend credit to GoodHeart so that it could purchase 

products from RDC to sell in the Philadelphia pharmacy. The Agouchas allegedly agreed 

to be personal guarantors of GoodHeart’s debt obligation under the credit agreement. 

Over the years GoodHeart purchased products from RDC on credit, but GoodHeart 

ultimately failed to timely remit payment to the tune of over $100,000. 

RDC also alleged that Defendants executed a promissory note, by which they 

agreed to pay RDC the amount of $56,955.73 (plus interest) over 24 months. The money 

was loaned to Defendants so they could purchase products from RDC. Defendants 

defaulted on their obligations under the note; payments were tardy and/or partial. RDC 

alleged that it was owed over $35,000 on the note, plus interest, when it filed this action. 

 

1 Appellants’ last name has apparently been misspelled throughout these proceedings, 

including in the case caption: it is “Aguocha,” not “Agoucha.” While recognizing this, 

we will continue to use the latter spelling for the sake of consistency in the record.
3

RDC’s complaint set forth four claims: breach of contract and unjust enrichment 

claims against Defendants, a claim for “account stated” against GoodHeart and a breach 

of guarantee claim against the Agouchas. Defendants through counsel answered the 

complaint, then moved for partial summary judgment, asking the District Court to rule 

that they were liable under the credit agreement for no more than $50,000 (the amount of 

credit for which they originally applied). Defendants also claimed that the credit 

agreement’s accruing interest rate for delinquent payments was usurious under New York 

law, which governed pursuant to a choice of law clause in the agreement. Defendants’ 

motion relied only on the text of the credit agreement.

RDC moved for summary judgment on all of its claims. It relied on the credit 

agreement and the promissory note, plus internal accounting statements and invoices 

delivered to GoodHeart with the products sold to it on RDC’s credit, to demonstrate the 

existence of enforceable contracts between the parties and Defendants’ default 

thereunder. RDC claimed that, in addition to the amounts owed under the contracts, it 

was entitled to recover reasonable attorneys’ fees and litigation costs. 

The District Court denied Defendants’ motion for partial summary judgment and 

granted RDC’s motion for summary judgment, primarily because it was undisputed that 

Defendants had defaulted under the credit agreement and the promissory note. The 

District Court determined that RDC was entitled to reasonable attorney’s fees under the 

credit agreement. The District Court entered judgment in favor of RDC and against 

Defendants, jointly and severally, in the amount of $155,599.06. This timely appeal 
4

followed.2 

II.

We have jurisdiction under 28 U.S.C. § 1291.3 Our review of an order granting 

summary judgment is plenary. See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d 

Cir. 2015). We apply the same standard as the District Court. Thus, summary judgment 

will be appropriate where there are no genuine issues of material fact and the movant is 

entitled to judgment as a matter of law. See Mylan Pharms. Inc. v. Warner Chilcott Pub. 

 

2 Defendants were all represented by the same attorney in the District Court proceedings. 

Defendants’ original notice of appeal, however, was filed pro se. After we notified 

Defendants that a corporation may appeal only through counsel, see Simbraw v. United 

States, 367 F.2d 373 (3d Cir. 1966) (per curiam), an amended Notice of Appeal was filed 

pro se by the Agouchas, on their behalf only. No attorney appeared on behalf of 

GoodHeart within 21 days of our Simbraw notice and, as a result, we will dismiss the 

appeal as to GoodHeart. See 3rd Cir. LAR 107.2.

3 The District Court determined that RDC was entitled to reasonable attorney’s fees, but 

RDC does not appear to have supplied the District Court with an itemization of fees 

incurred. The District Court thus has not yet fixed an award of fees. While lingering 

issues can preclude a district court’s judgment from achieving the state of finality 

required for appeal under § 1291, the Supreme Court has held that “a decision on the 

merits is a ‘final decision’ under § 1291 even if the award or amount of attorney’s fees 

for the litigation remains to be determined.” Ray Haluch Gravel Co. v. Cent. Pension 

Fund of Int’l Union of Operating Eng’rs & Participating Emp’rs, 134 S. Ct. 773, 777 

(2014). This is true “[w]hether the claim for attorney’s fees is based on a statute, a 

contract, or both,” id., so long as the fees are for the “litigation in question.” Id. at 783; 

cf. In re Roussel, 769 F.3d 574, 578 (8th Cir. 2014).

We note, further, that it does not appear as though RDC moved for summary 

judgment on its unjust enrichment claim. An un-adjudicated claim is one of those 

lingering issues that could impair our appellate jurisdiction. Cf. Owens v. Aetna Life & 

Cas. Co., 654 F.2d 218, 220 n.2 (3d Cir. 1981). But RDC’s unjust enrichment claim 

appears to have been pleaded only in the alternative to the breach of contract claim in the 

event that the credit agreement or promissory note was deemed unenforceable (which did 

not occur). Cf. Beth Isr. Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 

448 F.3d 573, 586-87 (2d Cir. 2006). Accordingly, the District Court’s judgment was 

“final” for purposes of § 1291 and we may exercise jurisdiction in this appeal. 
5

Ltd. Co., 838 F.3d 421, 433 n.42 (3d Cir. 2016). “Inferences drawn from the underlying 

facts must be viewed in the light most favorable to the nonmoving party.” Id. 

III.

The Agouchas’ pro se brief, liberally construed, appears to raise the following 

claims on appeal: (1) “The District Court relied only on the statements made by [RDC]”; 

(2) the District Court did not consider RDC’s decision to stop supplying GoodHeart with 

products once GoodHeart ceased “making payments [in] a timely manner”; (3) prior to 

RDC’s decision to stop supplying GoodHeart with products, GoodHeart and RDC were 

operating pursuant to a “verbal agreement” permitting GoodHeart to make installment 

payments to cure its arrears; (4) the District Court failed to consider the efforts of 

GoodHeart’s attorney to settle the dispute with RDC; and (5) the Agouchas are not 

personally liable for the debt obligations of GoodHeart.

We have considered the record and the parties’ briefs, and agree with RDC that 

the Agouchas claims are either waived (being raised for the first time on appeal) or 

without merit. In particular, while the Agouchas suggest that the District Court gave 

undue favor to the arguments made by RDC, Defendants for their part offered no 

competent evidence to undermine the enforceability of the contracts at issue or to prove 

that the amounts allegedly owed to RDC were not in fact owed. Defendants offered no 

competent evidence to undermine the plain language of the credit agreement making the 

Agouchas guarantors of GoodHeart’s payment responsibility and performance. See

Supp. App’x at 16. In opposing summary judgment, the Agouchas submitted only copies 
6

of the contracts at issue and their own sworn declarations identically stating that “Steve 

Finkelstein, on behalf of RDC, informed me that I was signing the Credit Application 

only on behalf of GoodHeart Pharmacy.” Supp. App’x at 173, 175. To the extent that 

the Agouchas were attempting to raise a fraud-in-the-inducement defense, they failed to 

supply evidence that would sufficiently support the elements of that defense under New 

York law. See, e.g., Computerized Radiological Servs. v. Syntex Corp., 786 F.2d 72, 76 

(2d Cir. 1986) (listing elements, and noting that “[u]nder New York law, fraud must be 

proved by clear and convincing evidence.”).

Therefore, for the reasons given above, the judgment of the District Court will be 

affirmed.