Matsco v. Prattis et al

Filing 10

MEMORANDUM AND OPINION: Granting the plaintiff's motion for a default judgment and an ORDER REFERRING plaintiff's motion to MJ Gold to hold an inquest as to damages and issue a report and recommendation as to damages. There will be no formal orders mailed to counsel. Ordered by Senior Judge Frederic Block on 12/10/2009. Motions referred to Steven M. Gold. (Innelli, Michael)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------x MATSCO, a division of WELLS FARGO, N.A., Plaintiff, -againstS U S A N MARIE PATTIS and VETERINARY HOSPITAL, P.C., VIP MEMORANDUM AND ORDER Case No. 09-CV-3362 (FB) (SMG)

Defendant. ------------------------------------------------------x Appearances: For the Plaintiff: MICHAEL H. LEVISON, ESQ. Pitney Hardin, LLP 7 Times Square New York, NY 10036 BLOCK, Senior District Judge: On August 5, 2009, plaintiff Matsco ("Matsco") filed a complaints containing numerous claims, including the breach of a loan contract and a guaranty contract, for which it seeks damages. As defendant Susan Marie Pattis ("Pattis"),1 after being duly served, failed to respond to
the complaint or otherwise defend against the action, see Docket Entry #6 (Clerk's Entry of Default),

Matsco now moves for entry of a default judgment pursuant to Federal Rule of Civil Procedure 55(b) in respect to its first and second claims.2

Plaintiff's claims against defendant VIP Veterinary Hospital, P.C. ("VIP"), were stayed on November 16, 2009, because VIP filed for Chapter 11 bankruptcy. Matsco's counsel states that it "is not seeking the entry of a final judgment with respect to any of the other claims set forth in the Complaint;" as such, the Court considers all other claims against Pattis withdrawn. See Levinson Aff. ¶ 5.
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A defendant's default is an admission of all well-pleaded allegations in the complaint except those relating to damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) ("While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages."). A district court must nevertheless determine whether the allegations state a claim upon which relief may be granted, see Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) ("[A district court] need not agree that the alleged facts constitute a valid cause of action."); if they do, damages "must be established by the plaintiff in an evidentiary proceeding in which the defendant has the opportunity to contest the amount." Greyhound Exhibitgroup, 973 F.2d at 158. Matsco alleges that Pattis entered into a loan contract and a guaranty contract, see Compl. Exs. 1-4, pursuant to which she was responsible for monthly payments to Matsco. Matsco alleges that it preformed its obligations under these contracts, see id. ¶ 20, 26, and that Pattis failed to make the required monthly payments due to Matsco, see id. ¶ 19, 24. These allegations ­ deemed admitted ­ are sufficient to establish a breach of these contracts. Thus, Matsco's motion for entry of a default judgment is granted. The matter is referred to the assigned magistrate judge for a report and recommendation on the relief to be awarded. SO ORDERED. ___________________________________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York December 9, 2009

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