Holcim Solutions and Products US, LLC v. Mc Donald Metal & Roofing Supply Corp.

Filing 31

ORDER ADOPTING 27 REPORT AND RECOMMENDATIONS and denying Plaintiff's 21 Motion for Default Judgment. Finding no merit to any of Plaintiff's objections, the court ADOPTS IN FULL the Magistrate Judge's R&R. So Ordered by Judge Nicholas G. Garaufis on 8/30/2024. (TLH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HOLCIM SOLUTIONS AND PRODUCTS US,
LLC, f/k/a FIRESTONE BUILDING PRODUCTS
COMPANY, LLC,

MEMORANDUM & ORDER
23-CV-04448 (NGG) (CLP)

Plaintiff,
-againstMCDONALD METAL & ROOFING SUPPLY
CORP.,
Defendant.
NICHOLAS G. GARAUFIS, United States District Judge.
This is an action commenced by Plaintiff Holcim Solutions and
Products US, LLC, f/k/a Firestone Building Products Company
("Holcim") against Defendant McDonald Metal & Roofing Supply
Corp. ("McDonald"), seeking damages for breach of contract and
unjust enrichment. (See Complaint (Dkt. 1) .) Pending before the
court are Magistrate Judge Cheryl L. Pollak's Report and Recommendation ("R&R") on Holcirn's motion for default judgment,
and Holcim's Objections to that R&R. (See Mot. for Default J.
("Mot.") (Dkt. 21); R&R dated 07/14/2024 ("R&R") (Dkt. 27);
Pl.'s Objections to R&R (Dkt. 28).) For the reasons set forth below, the court ADOPTS IN FULL the R&R.
I.

BACKGROUND

The court assumes familiarity with the background of this case in
light of Magistrate Judge Pollak's description of the foregoing factual and procedural history in her R&R. (R&R at 1-2.) Judge
Pollak issued the annexed R&R on July 14, 2024, recommending
that the court deny Plaintiffs motion for default judgment without prejudice for failure to follow the Local Civil Rules of the U.S.
District Courts for the Southern and Eastern Districts of New York

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("Local Civil Rules"). (See generally id.) Judge Pollak further recommended that the court grant Plaintiff leave to renew its
motion in compliance with the Local Civil Rules. (Id. at 7.) Plaintiff filed objections on July 29, 2024. (See Pl.'s Objections to
R&R.)
II. LEGAL STANDARD

A district court "may accept, reject, or modify, in whole or in part,
the findings or recommendations made" by a magistrate judge in
an R&R. 28 U.S.C. § 636(b)(l)(C). Where a party timely and
specifically objects, the court conducts a de nova review of the
contested portions of the R&R. Fischer v. Forrest, 286 F. Supp. 3d
590, 601 (S.D.N.Y. 2018). "However, when a party makes only
conclusory or general objections, or simply reiterates his original
arguments, the court reviews the report and recommendation
strictly for clear error." Piligian v. Icahn Sch. of Med. at Mount
Sinai, 490 F. Supp. 3d 707, 715 (S.D.N.Y. 2020). 1
III. DISCUSSION

Plaintiff makes two objections to the R&R. (See generally Pl.'s Objections to R&R.) The court addresses each objection in turn
below.
First, Plaintiff objects that it has functionally complied with Local
Civil Rules 7.l(a) and 55.2(b). 2 This is a specific objection. As
When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.
1

The court notes that Local Civil Rules 7.l(a) and 55.2(b) were updated
on July 1, 2024. Per Local Civil Rule 1.1., "[t]hese Local Civil Rules take
effect on July 1, 2024 (the 'Effective Date') and govern actions pending or
filed on or after that date. For actions pending on the Effective Date, if
fewer than 14 days remain to perform an action governed by these Rules,
the provisions of the previous Local Rules effective on June 30, 2024 will
govern." E.D.N.Y. L.R. 1.1. Plaintiff filed its pending motion on January 10,
2

2

such, the court reviews this objection de nova. As discussed by
Magistrate Judge Pollak, Plaintiff has not complied with the relevant rules. In particular, Plaintiff has not filed (1) a
memorandum of law, setting forth legal authority upon which it
seeks default judgment and damages as required by Local Civil
Rule 7.l(a)(2); (2) an affidavit in support, containing factual information necessary for the decision as required by Rule
7.1 (a) (3); nor has Plaintiff appended to its application for default
judgment (3) the Clerk of Court's certificate of default as required
by Rule 55.2(b)(l); or (4) a copy of the claim to which no response has been made as required by Rule 55.2(b)(2). (R&R at
4-6.) On de nova review of the claims, the Motion, the R&R, and
the Complaint, the court agrees with Magistrate Judge Pollak's
recommendation and finds that dismissal with leave to renew is
proper. See Commerzbank AG v. U.S. Bank, N.A., 100 F.4th 362,
377 (2d Cir. 2024), petition for cert. filed, No. 24-104 (July 29,
2024) (emphasizing that district courts have broad discretion in
determining whether to overlook a party's failure to comply with
local court rules); Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995)
(noting that a default judgment is "the most severe sanction
which the court may apply").
Plaintiff argues that it functionally complied with the Local Civil
Rules because, even though it did not attach a memorandum of
law or supporting affidavits, its motion cites the Verified Complaint, which is the equivalent of an affidavit. (Pl.'s Objections to
R&R at 2-3.) Similarly, Plaintiff contends that although it did not
append the certificate of default and copy of the claim, Plaintiff
referenced these documents in its motion, and the R&R recognized these documents. (Id. at 3-4.)

2024. (See generally Mot.) Thus, the previous Local Civil Rules govern here,
and the court's Order is in accord with the rules in effect on June 30, 2024.

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However, while the court may review the docket to find support
for Plaintiffs motion, the relevant Local Civil Rules-in particular, requirements to append a memorandum of law with
supporting affidavits, copy of the claim, and certificate of default-promote fairness and efficiency to the party who faces the
extreme sanction of a default judgment. See Transatlantic Auto
Grp., Inc. v. Unitrans-PRA Co., No. 08-CV-5070 (DLI) (CLP), 2011
WL 4543877, at *20 (E.D.N.Y. Sept. 9, 2011) (acknowledging
the local rules relating to default provide more protection for
non-appearing defendants than the Federal Rules of Civil Procedure to promote fairness and efficiency), report and
recommendation adopted, No. 08-CV-5070 (DLI) (CLP), 2011 WL
4543838 (E.D.N.Y. Sept. 29, 2011); see also Century Sur. Co. v.
Atweek, Inc., No. 16-CV-335 (ENV) (PK), 2018 WL 10466835, at
*1 (E.D.N.Y. Jan. 9, 2018) (clarifying that pursuant to Local Civil
Rule 55.2(b), "[t]he fact that some of these [required] items may
be found electronically, scattered on the docket, does not absolve
movants of their obligation to collect and append copies to their
moving papers") (collecting cases).
Furthermore, Plaintiffs argument that courts within the Second
Circuit have preference for deciding issues on the merits rather
than on procedural deficiencies, (Pl.'s Objections to R&R at 1),
carries little weight where the "merits" would be to award a default judgment. See New York v. Green, 420 F.3d 99, 104 (2d Cir.
2005) (discussing the severity of the sanction of a default judgment and the preference for resolving disputes on the merits). In
such situations, "[i] t is the responsibility of the trial court to
maintain a balance between clearing its calendar and affording
litigants a reasonable chance to be heard." See Enron Oil Corp. v.
Dia/cuhara, 10 F.3d 90, 96 (2d Cir. 1993). And "because defaults
are generally disfavored and are reserved for rare occasions,
when doubt exists as to whether a default should be granted or
vacated, the doubt should be resolved in favor of the defaulting
party." Id. Plaintiffs failure to comply with the Local Civil Rules

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has raised such doubts here. To that end, "the courts in this District have repeatedly held that a movant's failure to comply with
Local [Civil] Rule 55.2 warrants denial of default judgment application." Lugo v. Allstate Ins. Co., 19-CV-7150 (JMA) (JMW),
2022 WL 3928727, at *5 (E.D.N.Y. Aug. 10, 2022) (collecting
cases), report and recommendation adopted, 19-CV-7150 (JMA)
(JMW), 2022 WL 3914981 (E.D.N.Y. Aug. 31, 2022). Therefore,
this court agrees with Judge Pollak's recommendation to deny
the motion.
Second, Plaintiff argues that "[e]ven if the Court finds that the
Motion failed to comply with Local Civil Rules 7.l(a) and
55.2(b), the Court should grant the Motion." (Pl.'s Objections to
R&R at 4-5). Again, the court reviews this specific objection de
nova and finds no merit in Plaintiffs objection. As Plaintiff notes
in its objection, "[d]istrict courts have inherent authority to determine when to overlook or excuse a departure form its own
local rules, regardless of whether such departure is authorized in
the local rules or not." (Id. at 4 (quoting City Merch. Inc. v. Tian
Tian Trading, Inc., No. 19-CV-9649 (MKV), 2021 WL 119075, at
''3 (S.D.N.Y. Jan. 13, 2021).) To be clear, however, courts exercise their inherent authority to excuse or overlook a party's
noncompliance "only where the application of the local rule
would produce an unfair result." Jaimie Shipping, Inc. v. Oman
Ins. Co., No. 08-CV-6882 (JFK), 2008 WL 4178861, at *7
(S.D.N.Y. Sept. 8, 2008) (discussing cases in which the Second
Circuit courts have departed from a local rule to avoid default or
untimely filing for remand). No drastic consequence to Plaintiff
is at issue here. To the contrary, granting the motion with deficiencies would have such consequences for Defendant. Instead,
Judge Pollak recommends denying the motion for default "without prejudice and with leave to renew." (R&R at 7 (emphasis
added).) This court agrees. Plaintiffs "inconvenience of submitting to the local rule's strictures" is not enough to warrant
otherwise. See Jaimie Shipping, Inc., 2008 WL 4178861, at *7.

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IV. CONCLUSION

Finding no merit to any of Plaintiffs objections, the court
ADOPTS IN FULL the Magistrate Judge's R&R.
SO ORDERED.

Dated:

Brooklyn, New York
August 30
_, 2024
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS ~

United States District Judg

6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------X
HOLCIM SOLUTIONS AND PRODUCTS
US, LLC, f/k/a FIRESTONE BUILDING
PRODUCTS COMPANY, LLC,
Plaintiff,

REPORT AND
RECOMMENDATION
23 CV 4448 (NGO) (CLP)

-againstMCDONALD METAL
SUPPLY CORP.,

&

ROOFING

Defendant.

--------------------------------------------------------X
POLLAK, United States Magistrate Judge:

On June 15, 2023, plaintiff Holcim Solutions and Products US, LLC, f/k/a Firestone
Building Products Company ("Holcim"), commenced this action against defendant McDonald
Metal & Roofing Supply Corp. ("McDonald"), seeking damages for breach of contract and
unjust enrichment. (Compl. 1). Despite proper service, defendant failed to file an answer or
otherwise respond to the Complaint, and a default was entered on December 28, 2023 (ECFNo.
20). Plaintiff thereafter filed a motion for default judgment (the "Motion") (ECF No:21 ), which
was referred to this Court by the Honorable Nicholas G. Garaufis on April 17, 2024.
For the reasons set forth below, the Court respectfully recommends that plaintiffs motion
for default judgment be denied, without prejudice to refile in accordance with Local Civil Rules
7.1 and 55.2.
FACTUAL BACKGROUND
Plaintiff Holcim alleges that it is a for-profit corporation, incorporated under the laws of
the State of Indiana, with its principal place of business in Tennessee. (Comp I.

,r 1).

Holcim

1 Citations to "Comp!." refer to plaintiff's Verified Complaint For Breach of Contract and Unjust
Enrichment, filed June 15, 2023. (ECF No. 1).

1

sells roofing and building solutions, including self-adhering roofing membranes, and
waterproofing technology. (Id. ,r 8). Defendant McDonald is a for-profit corporation,
incorporated in the State of New York, with its principal place of business located at One
Avenue M, Brooklyn, New York, 11230. (Id.

,r,r 2, 3).

The Complaint alleges that from time to time, defendant McDonald would purchase, and
Holcim would agree to sell and deliver to defendant, certain roofing and building products. (Id.

,r 9).

Holcim would issue invoices to defendant reflecting the products sold and delivered to

defendant. (Id.

,r 10).

From approximately October 30, 2018, through approximately January 31,

2022, Holcim allegedly sold and delivered to defendant $951,132.34 in goods pursuant to
defendant's request. (Id. ,r,r 11, 12, Ex. A). Holcim asserts two claims: one for breach of contract
in the amount of $951,132.34 (Count I); and a second alternative claim for unjust enrichment
based on defendant's nonpayment for goods sold by plaintiff (Count II).
Following the filing of the Complaint, defendant was served on November 10, 2023, by
service upon the New York State Secretary of State. (ECFNo. 17). When defendant failed to
appear and file an answer, a default was entered by the Clerk of Court on December 28, 2023.
(:ECFNo. 20). Plaintiff filed the Motion on January 10, 2024. (ECFNo. 21). On June 4, 2024,
this Comt issued an Order inviting defendant to submit papers in response to plaintiffs motion
or to request a hearing and Ordered plaintiff to serve the Court's Order on defendant. (ECF No.
24). On June 6, 2024, plaintiff filed a certificate of service showing that it had served defendant
with a copy of the Comt's Order. (ECF No. 25). Defendant filed no papers and did not contact
the Court to request a hearing. Nevertheless, the Comt scheduled a hearing for July 24, 2024.

2

DISCUSSION
I.

Legal Standard
Rule 55(a) of the Federal Rules of Civil Procedure provides that "[w]hen a party against

whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R; Civ.
P. 55(a). Rule 55 sets fo1th a two-pmt procedure for entering a default judgment. First, the
Clerk of Court enters a default by noting the defaulting pmty's failure to respond or appear. Id.
Second, if the defaulting party fails to vacate the entry of default pursuant to Rule 55(c), the
appearing party may seek a default judgment to establish liability and, if proven, damages. Fed
R. Civ. P. 55(b).
In determining whether a default judgment should be entered, the Second Circuit has
cautioned that a default judgment is an "extreme sanction" that "must remain a weapon of last,
rather than first, resort." Meehan v. Snow, 652 F.2d 274,277 (2d Cir. 1981); see also Sheet
Metal, Air, Rail & Transp. Workers Loe. Union No. 127 v. Frank Torrone & Sons, Inc., No. 14
CV 2224, 2018 WL4771897, at *4 (E,D.N.Y. Oct. 3, 2018), adopting report and
recommendation, 2018 WL 6161655 (E.D.N.Y. Sept. 4, 2018). While the Second Circuit has
recognized the pressure on district courts "to dispose of cases that ... delay and clog [their]
calendar[s]" due to the litigants' "disregard of the rules," the Circuit instructs district courts to
"maintain a balance between clearing [their] calendar[ s] and affording litigants a reasonable
chance to be heard." Enron Oil Corp. v. Diakuhara, 10 F.3d90, 95-96 (2d Cir. 1993); see also
Jeremiah v. 5 Towns Jewish Times, Inc., No. 22 CV 5942, 2023 WL6593997, at *2 (E.D.N.Y.
Aug. 9, 2023), report and recommendation adopted, 2023 WL5703698 (E.D.N.Y. Sept. 5,
2023). Thus, in light of the "oft-stated preference for resolving disputes on the merits," defaults
are "generally disfavored" and "doubt[ s] should be resolved in favor of the defaulting party."
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Enron Oil Corp. v. Diakuhara, 10 F.3d at 95~96; see also Erwin DeMarino Trucking Co. v.
Jackson, 838 F. Supp. 160,162 (S.D.N.Y. 1993) (stating that courts must "supervise default
judgments with extreme care to avoid misca1Tiages of justice"). Furthermore, "[Rule 55(b)]
states that a judgment by default 'may' be entered under specified circumstances, not that it
must." Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp: at 162. Accordingly, a plaintiff
is not entitled to a default judgment as a matter of right simply because the defendant is in
default, see, e.g., id., and courts have significant discretion in deciding whether to enter default
judgment, see Jeremiah v. 5 Towns Jewish Times, Inc., 2023 WL6593997, at *2.
The burden is on the plaintiff to establish his entitlement to recovery. See Greyhound
ExhibitGroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), ce1t. denied, 506
lJ.S.1080 (1993 ). When a default judgment is entered, the defendants are deemed to have
admitted all well-pleaded allegations in the complaint pertaining to liability, but not those related
to damages. See id.; Au Bon Pain Corp. v. Artect, Inc., 653 F;2d 61>65 (2d Cir. 1981 ).
IL

Analysis
Before recommending that the court enter default judgment, this Court must determine if

plaintiff has complied with the procedural requirements of the Local Civil Rules of the Eastern
and Southern Districts of New York (the "Local Civil Rules"). Bhagwat v. Queens Carpet Mall,
Inc., No. 14 CV 5474, 2017 WL9989598, at *1 (E.D.N.Y. Nov. 21, 2017) (holding that "A
motion for default judgment will not be granted unless the patty making the motion adheres to all
of the applicable procedural rules"); see also Morales v. Los Caetales Res. Corp., No. 21 CV
1868, 2023 WL 375647, at *3 (E.D.N.Y. Jan. 3, 2023) (quoting Contino v. United States, 535
F,3d 124, 126 (2d Cir. 2008) for the proposition that "[l]ocal rules have the force of law, as long
as they do not conflict with a rule prescribed by the Supreme Court, Congress, or the
Constitution"), report and recommendation adopted, 2023 \VL375642 (E.D.N.Y. Jan. 24, 2023).
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Pursuant to Local Civil Rule 55.2(b), a movant's motion for default judgment must append "(1)
the Clerk's certificate of default, (2) a copy of the claim to which no response has been made,
and (3) a proposed form of default judgment." Here, plaintiff has not complied with Rule
55.2(b), having only appended a proposed form of judgment to its motion.
Moreover, even if plaintiff had complied with the procedural requirements of Local Civil
Rule 55, it has not complied with Local Civil Rule 7.l(a), pursuant to which filings for a
dispositive motion must include:
( 1) A notice of motion, or an order to show cause signed by the
court, which shall specify the applicable rules or statutes pursuant
to which the motion is brought, and shall specify the relief sought
by the motion;
(2) A memorandum of law, setting forth the cases and other
authorities relied upon in support of the motion, and divided,
under appropriate headings, into as many parts as there are issues
to be determined; and
(3) Suppmting affidavits and exhibits thereto containing any factual
information and portions of the record necessary for the decision
of the motion.
Courts in this Circuit have held that a moving party's failure to attach a memorandum of
law and other supp01ting documents in accordance with Local Civil Rule 7.1 is sufficient
grounds to deny a motion. Avillan v. Donahoe, No. 13 CV 509, 2015 WL728169, at *6-7
(S.D.N.Y. Feb. 19, 2015) (explaining that the "failure to submit a memorandum of law, standing
alone, is sufficient cause for granting or denying a motion" (quoting Wenzhou Wanli Food Co.,
Ltd. v. Hop Chong Trading Co., No. 98 CV 5045, 2000 WL 964944, at *3 (S.D.N.Y. July 11,
2000))); see also Agarwal v. United States, No. 14 CV 1873, 2015 WL5638032, at *2, *4
(S.D.N. Y. July 20, 2015) (holding that default judgment motion was "procedurally defective"
because movant failed to file a supporting memorandum of law, affidavit, and exhibits
"containing any factual information ... necessary for the decision of the motion, as required by
5

the court's Local Civil Rules"), report and recommendation adopted 2015. WL 5794418
(S.D.N.Y. Oct. 5, 2015). While district courts retain broad discretion to excuse or overlook a
party's failure to comply with the local rules, they typically will not do so unless the "interests of
justice" support that approach. Cea v. Access 23 TV, No. 11 CV 3791, 2015 WL 5474070, at *3
(S.D.N.Y. Sept. 15, 2015); see also Cardoza v. Mango King Farmers Mkt. Corp .. No. 14 CV 3314,
2015 WLS561033, at *2 n.4 (E.D.N.Y. Sept. t, 2015) (explaining that a court "may deny [a)
motion" for failure to comply with local filing rules but "is not required to do so"), report and
recommendation adopted, 2015 W'.t556Il80 (E.D.N.Y. Sept. 21, 2015).
In support of plaintiff's request for entry of default judgment, plaintiff has submitted a
Motion for Default Judgment and a Proposed Order, as well as an Affidavit of Service for
Motion for Default Judgment and a Certificate of Counsel attesting to the service of the motion,
and the absence of any objections by defendant. (ECFNos. 21-23). The Complaint itself also
attaches invoices that purportedly pe1tain to the goods for which plaintiff asserts it is owed
payment. (Compl., Ex. A). However, plaintiff has not filed a Memorandum of Law setting forth
the legal authority upon which it seeks default judgment and damages, nor has plaintiff provided
any "[s]upporting affidavits and exhibits thereto containing any factual information and p01tions
of the record necessary for the decision of the exhibits attached thereto." Local Ciy; R.7J(a:)(3}.
Plaintiffs failure to comply with the filing requirements cannot be excused in this case.
Plaintiff has not provided the Court with any information on the appropriate quantum of damages
in this case according to applicable caselaw. With no additional information from anyone with
knowledge that the allegations pertaining to damages, the invoices, and the amounts set forth
therein are accurate, and with no further explanation as to the basis for the amounts requested,
the Court is left to take on trust the accuracy of plaintiffs allegations-including the allegation
that no payments toward the invoices have been made-and the numbers listed in the invoices.
6

While the defendant is deemed to have admitted all well-pleaded allegations in the complaint
pertaining to liability, Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 7, 83 (E.D.N.Y. 2012), "the
quantum of damages remains to be established by proof unless the amount is liquidated or
susceptible of mathematical computation." Parris v. Pappas, 844 F~ Supp. 2d 271, 274 (D. Conn.
2012) (quoting Flaks v. Koegel, 504F.2d702,701 (2d Cir. 1974)). In the absence ofa
Memorandum of Law and supporting factual affidavits, the Court cannot determine if plaintiff
has carried its burden of demonstrating damages.
CONCLUSION
Accordingly, the Comt respectfully recommends that plaintiffs motion for default
judgment be denied at this time without prejudice and with leave to renew in compliance with
this Repo1t and Recommendation and the Cami's Local Civil Rules. The inquest hearing set for
July 24, 2024, is adjourned sine die.
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Repmt. See
28 U,S.C/§ 636(b)(l); Fed. Rt::iv. P; 72(b)(2); see also Fecl.J{. Civ. P. _6(a) (providing the
method for computing time). Failure to file objections within the specified time waives the right
to appeal the District Court's order. See, e.g .. Caidor v. Onondaga Cnty., 517 F-,3d 601,604 (2d
Cir. 2008). Plaintiff is Ordered to serve this Report and Recommendation on defendant and file
proof of service on the docket within one week.
SO ORDERED.
Dated: Brooklyn, New York
July 14, 2024
cher)'i:Pollak
United States Magistrate Judge
Eastern District ofNew York

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