Cadle Company v. Livingston et al

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS. As set forth in the attached Memorandum & Order, the Court has reviewed Magistrate Judge Azrack's unopposed 21 report and recommendation and adopts Judge Azrack's recommendation, as modified, pur suant to 28 U.S.C. § 636(b)(1), for entry of judgment against Livingston in the following amounts: (1) $121,349.09 in principal, (2) $93,770.82 in interest through October 15, 2013, (3) $559.90 in costs and disbursement, (4) $ ;7,039.25 in prejudgment interest for the period between October 15, 2013 and the date of this Memorandum and Order, and (5) additional interest at the rate of $34.05 per day from May 8, 2014 through the date of judgment. The Court adopts Judge Azrack's recommendation for entry of judgment against Wilson in the amount of $197,000. Livingston and Wilson are jointly and severally liable for the amount of $197,000. Livingston is solely liable for the additional amount of $25,719.06, plus prejudgment interest from May 9, 2014 through the date of judgment. Ordered by Judge Margo K. Brodie on 5/9/2014. (Prakash, Swati)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------CADLE COMPANY,
Plaintiff,

MEMORANDUM & ORDER
13-CV-3799 (MKB)

v.
ELDRIDGE LIVINGSTON and KATHLEEN
WILSON,
Defendants.
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Cadle Company commenced the above-captioned action against Defendants
Eldridge Livingston and Kathleen Wilson, seeking repayment of a promissory note. Although
properly served with copies of the summonses, Complaint and Amended Complaint, (Docket
Entry Nos. 5–6), Livingston failed to appear or otherwise defend against this action, and Wilson
initially failed to appear. On September 17, 2013, the Clerk of Court noted Livingston’s default,
(Docket Entry No. 11), and on October 11, 2013 the Clerk of Court noted Wilson’s default,
(Docket Entry No. 13.) Plaintiff subsequently moved for a default judgment as to both
Defendants, (Docket Entry No. 14), which motion was referred to Magistrate Judge Joan M.
Azrack. Wilson subsequently appeared to defend against this action, (see Docket Entry No. 17,
Minute Entry dated November 19, 2013), and signed a stipulation of settlement with Plaintiff for
$197,000, (Docket Entry No. 18, Ex. 1). Plaintiff moved for judgment against Wilson based on
settlement. (Docket Entry No. 18.) By Report and Recommendation (R&R) dated January 14,
2014, Judge Azrack recommended that (1) judgment be entered jointly and severally against
Livingston and Wilson in the amount of $197,000, and (2) a default judgment be entered

individually against Livingston for an additional $18,679.81, plus per diem interest of $3,109.57
from October 16, 2013, until the entry of judgment. (Docket Entry No. 21.) No objections were
filed.
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). “Failure to object to a magistrate judge’s report and recommendation
within the prescribed time limit ‘may operate as a waiver of any further judicial review of the
decision, as long as the parties receive clear notice of the consequences of their failure to
object.’” Sepe v. New York State Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (quoting United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Almonte v. Suffolk Cnty., 531
F. App’x 107, 109 (2d Cir. 2013) (“As a rule, a party’s failure to object to any purported error or
omission in a magistrate judge’s report waives further judicial review of the point.” (quoting
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party
waives appellate review of a decision in a magistrate judge’s Report and Recommendation if the
party fails to file timely objections designating the particular issue.”).
Judge Azrack recommends entry of judgment against Wilson pursuant to the terms of the
settlement agreement in the amount of $197,000, and notes that “[b]ecause Wilson and
Livingston both signed the [promissory n]ote, they should be jointly and severally liable for
$197,000.” (R&R 4.) Having reviewed Judge Azrack’s recommendation and finding no clear
error, the Court adopts Judge Azrack’s recommendation, and finds Wilson jointly and severally
liable with Livingston in the amount of $197,000.

2

Judge Azrack also found that Plaintiff is entitled to an additional judgment against
Livingston in the amount of $18,679.81, for a total judgment of $215,679.81, plus prejudgment
interest. (R&R 4.)1 The total judgment against Livingston reflects the following:
(1) $121,349.09 in principal, (2) $93,770.82 in interest calculated from April 1, 2006 through
October 15, 2013, and (3) $559.90 in court costs. (R&R 4.) Judge Azrack further recommends
“per diem interest of $3,109.57 from October 16, 2013 until entry of judgment” against
Livingston. (R&R 4.) This figure appears to reflect the total interest that continued to accrue
between October 15, 2013 and the date of the R&R, January 15, 2014.2 Therefore, the Court
construes the R&R as including a recommendation for the entry of prejudgment interest in the
amount of $3,109.57 for the period between October 15, 2013 and January 15, 2014. Finding no
clear error with the calculation method used by Judge Azrack, the Court recalculates the
prejudgment interest award using the interest rate provided in the promissory note, (see Compl.
Ex. A at 1; see also R&R 2), and the date of entry of the instant Memorandum and Order (May
8, 2014), for a total prejudgment interest award for the period between October 15, 2013, and

1

Judge Azrack correctly notes the individual components of the judgment against
Livingston, but initially states a total figure of $215,120.81, which is the total judgment
exclusive of court costs and disbursements. (R&R 4.) In the conclusion, the R&R recommends
a total judgment against Livingston in the correct amount of $197,000 plus $18,679.81, for a
correct total of $215,679.81. (Id.)
2

The per diem interest rate on the initial principal balance of the promissory note of
$121,349.09, at an annual rate of interest of 10.25 percent, is $34.05. At this rate, the total
interest that accrued during the 91 days between October 15, 2013, and January 15, 2014, the
date of Judge Azrack’s R&R, is $3,101.28, which is approximately the amount of prejudgment
interest recommended by Judge Azrack. The Court notes that this simplified method of
calculating prejudgment per diem interest is consistent with the method used by Plaintiff to
calculate interest owed for the period between April 1, 2006, and October 15, 2013. (See Pl. Aff.
¶ 11.)

3

May 9, 2014, of $7,039.25.3 In addition, the Court enters judgment at the per diem rate of
$34.05 per day from May 9, 2014 through the date of entry of judgment.
The Court has reviewed the unopposed R&R and adopts Judge Azrack’s
recommendation, as modified, pursuant to 28 U.S.C. § 636(b)(1), for entry of judgment against
Livingston in the following amounts: (1) $121,349.09 in principal, (2) $93,770.82 in interest
through October 15, 2013, (3) $559.90 in costs and disbursement, (4) $7,039.25 in prejudgment
interest for the period between October 15, 2013 and the date of this Memorandum and Order,
and (5) additional interest at the rate of $34.05 per day from May 8, 2014 through the date of
judgment. The Court adopts Judge Azrack’s recommendation for entry of judgment against
Wilson in the amount of $197,000. Livingston and Wilson are jointly and severally liable for the
amount of $197,000. Livingston is solely liable for the additional amount of $25,719.06, plus
prejudgment interest from May 9, 2014 through the date of judgment.
SO ORDERED:

s/MKB
MARGO K. BRODIE
United States District Judge
Dated: May 9, 2014
Brooklyn, New York

3

The Court arrived at this figure by multiplying the original principal amount,
$121,349.09, by the annual interest rate of 10.25 percent, by the total time that has elapsed
between October 15, 2013 and May 9, 2014, which is 0.56 years.
4