United States of America v. Ojudun, No. 2:2010cv04637 - Document 9 (E.D.N.Y. 2012)
Court Description: MEMORANDUM AND ORDER granting 7 Motion for Default Judgment. Plaintiff's motion for a default judgment is GRANTED. The Clerk of the Court is respectfully directed to enter judgment against the Defendant in the amount of $5,913.93 plus th irty-five cents per day from October 8, 2010 through the date of judgment. The Government is also entitled to post-judgment interest in accordance with 28 U.S.C. § 1961. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/29/2012. C/ECF (Valle, Christine)
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United States of America v. Ojudun Doc. 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------X UNITED STATES OF AMERICA, Plaintiff, -against- MEMORANDUM & ORDER 10-CV-4637(JS) TOLU OJUDUN, Defendant. --------------------------------------X APPEARANCES For Plaintiff: Douglas M. Fisher, Esq. Solomon & Solomon Five Columbia Circle P.O. Box 15019 Albany, NY 12203 For Defendant: No appearances. SEYBERT, District Judge: On (“Plaintiff” (“Jordan” October or or the the 8, 2010, the “Government”) “Defendant”) to United sued States Defendant collect on a of America Tolu Ojudun student loan agreement on which the Defendant is now in default. The Defendant neither responded to the Complaint nor requested additional time to respond. The Clerk of the Court noted Defendant’s default (Docket Entry 4), and Plaintiff moved for a default judgment (Docket Entry 5). The Court denied Plaintiff’s motion without prejudice because Plaintiff had not submitted a certificate of Defendant’s indebtedness. (See Dockets.Justia.com Docket Entry 6.) Thereafter, Plaintiff renewed its motion, this time including the proper paperwork. (Docket Entry 7.) DISCUSSION For the following reasons, Plaintiff’s motion is GRANTED. I. Default A default constitutes an admission of all well-pled factual allegations in the complaint, and the allegations as they pertain to liability are deemed true. Joe Hand Promotions, Inc. v. El Norteno Rest. Corp., 06-CV-1878, 2007 WL 2891016, at *2 (E.D.N.Y. Inc. v. Sept. E.L.U.L. 28, Realty 2007) (citing Corp., 973 Greyhound F.2d 155, Exhibitgroup, 158 (2d Cir. 1992)). A default judgment entered on the well-pled allegations in complaint the establishes a defendant's liability. See Garden City Boxing Club, Inc. v. Morales, 05-CV-0064, 2005 WL 2476264, at *3 (E.D.N.Y. Oct. 7, 2005) (citing Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995)). The only question remaining, then, is whether Plaintiff has provided adequate support for the relief it seeks. Greyhound Exhibitgroup, Inc., 973 F.2d at 158. The determination of a motion for default judgment is left to the sound discretion of the district court. See Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999). In determining whether to grant a default judgment, the 2 court may plaintiff involved consider has and been “numerous factors, substantially whether the established or in doubt.’” grounds including prejudiced for by default ‘whether the are delay clearly O'Callahan v. Sifre, 242 F.R.D. 69, 73 (S.D.N.Y. 2007) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2685 (3d ed. 1998)). As the Second Circuit has observed, the Court is guided by the same factors that apply to a motion to set aside entry of a default. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993); Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 170-171 (2d Cir. 2001). These factors are (1) “whether the defendant's default was willful; (2) whether defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment.” Mason Tenders Dist. Council v. Duce Constr. Corp., 02-CV-9044, 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003) (citation omitted); see also Basile v. Wiggs, 08-CV-7549, 2009 WL 1561769, at *4 (S.D.N.Y. consideration May 29, including 2009) (listing defaulting factors party's for bad court's faith, “possibility of prejudice to the plaintiff, the merits of the plaintiff['s] substantive claim, the sufficiency of the complaint, the sum at stake, [and] whether the default was due to excusable neglect”) (second 3 alteration in the original) (quoting Feely v. Whitman Corp., 65 F. Supp. 2d 164, 171 (S.D.N.Y. 1999)). As to the first factor, the failure of the Defendant to respond to willfulness. the See, Complaint e.g., Indymac sufficiently Bank v. demonstrates Nat'l Settlement Agency, Inc., 07-CV-6865, 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007). Plaintiff has submitted an affidavit of service demonstrating that Defendant was properly served on November 6, 2010 with a Summons and a copy of the Complaint. 2). (Docket Entry As noted above, the Defendant never answered or responded in any way to the Complaint; nor did he request an extension of time to respond to the Complaint. The court file therefore establishes that Defendant has willfully failed to respond to the Complaint. Next, the Court must consider whether the Defendant has a meritorious defense. whether there is a The Court is unable to determine meritorious defense to Plaintiff's allegations because the Defendant has presented no such defense to the Court. Where no defense has been presented and, “[w]here, as here, ‘the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.’” Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary 4 Kay Kane, Federal Practice and Procedure § 2688, at 58-59 (3d ed. 1998)). The Complaint, the allegations of which are deemed admitted by Defendant in light of his default, describes the facts underlying Plaintiff’s case. The final factor the Court must consider is whether the non-defaulting party would be prejudiced if the motion for default were prejudicial to to be denied. Plaintiff “as Denying there this are available to secure relief in this Court.” no motion would additional be steps Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, 06-CV-14226, 2008 WL 5560868, at * 2 (S.D.N.Y. Oct. 27, 2008). As all three factors have been met, a default judgment is warranted. II. Damages Calculation The Complaint contains a demand for a current principal amount of $3,885.51 and for a current interest balance of $2,028.42, with prejudgment interest accruing at a rate of 3.28% per annum ($0.35 per diem after October 8, 2010). Compl. at 2.) (See Plaintiff does not seek attorneys’ fees or costs. Calculation of damages in this case, therefore, simply involves adding these amounts to reach a total of $5,913.93 and then adding thirty-five cents per day from October 8, 2010 through the date of judgment. 5 CONCLUSION Plaintiff’s motion for a default judgment is GRANTED. The Clerk of the Court is respectfully directed to enter judgment against the Defendant in the amount of $5,913.93 plus thirty-five cents per day from October 8, 2010 through the date of judgment. The Government is also entitled to post-judgment interest in accordance with 28 U.S.C. § 1961. The Clerk of the Court is directed to mark this matter CLOSED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: March 29 , 2012 Central Islip, New York 6
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