Baumgartner et al v. Salzman et al

Filing 269

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION - For the reasons set forth herein, Magistrate Judge Tomlinson's R&Rs are ADOPTED IN THEIR ENTIRETY. See Docket Nos. 262, 263, 264. Plaintiffs' partial default judgment motions filed as Docket Nos. 145, 149, 157, 173, 184 are GRANTED. Plaintiffs' motion for partial default judgment and an expedited inquest (Docket No. 189) is GRANTED IN PART AND DENIED AS MOOT IN PART. The Clerk of the Court is directed to issue a judgment in Plaintiffs' favor on the amounts set forth herein, against those Defendants. Additionally, the Clerk of the Court is directed to amend the judgment entered by Electronic Order on September 30, 2010 against Ms. Slacum and ADCI. The Amended J udgment should reflect that Ms. Slacum and ADCI are jointly and severally liable with Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Hseyin Coban, Ali Karli, Moritz Johannas Wagner d/b/a C.B.O.D. Serviceburo Germany, Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, John Ralston, and not just each other. Any assets that Plaintiffs recover from any Defendant shall be deposited in the Court's registry pending this case's resolution or further order of the Court. Plaintiffs are directed to consult with Magistrate Judge Tomlinson concerning the proper procedure for depositing said assets. The Court shall retain jurisdiction of this matter for all purposes. Plaintiffs are ORDERED to serve a copy of this Order upon each Defaulting Defendant. So Ordered by Judge Joanna Seybert on 3/17/2011. C/ECF; Certified copy of Order forwarded to Financial Office, Brooklyn. (Valle, Christine)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------x JOHANNES BAUMGARTNER WIRTSCHAFTS UND VERMOGENSBERATUNG GMBH, and HOLGER KNUT THEILER, Plaintiffs, -againstSTANLEY P. SALZMAN, ESQ., ET AL., Defendants. -----------------------------------x APPEARANCES: For Plaintiffs: Ivo G. Caytas, Esq. Caytas & Associates 146 West 57th Street, Suite 57d New York, NY 10019 For Defendants: Ayuk H. Bolukbasi MEMORANDUM AND ORDER 08-CV-2582 (JS)(AKT)

Ayuk H. Bolukbasi, pro se Bagdat Cad. Nazli Apt. No:78 K:2 D:7 Kiziltoprak ­ Istanbul Republic of Turkey Murat Ozkan, pro se Hamam sok. 33/33 Goztepe ­ Istanbul Republic of Turkey Hakan Metin, pro se Breslauer Strasse 15, 59423 Unna Federal Republic of Germany No appearances.

Murat Ozkan

Hakan Metin

Other Defendants

SEYBERT, District Judge: Pending before the Court are Plaintiffs' motions for partial default judgments and expedited inquest against twelve separate Defendants (collectively, "Defaulting Defendants").1 As to each on their

See Docket Nos. 145, 149, 157, 173, 184, and 189. Defaulting Defendant, Plaintiffs seek: (i)

judgment

state law claims of fraud, conspiracy, and gross negligence; and (ii) relief in the form of liquidated damages, plus pre-judgment interest. Tomlinson addressing Magistrate judgments On February 24, 2011, Magistrate Judge A. Kathleen issued those Judge be three Reports See and Recommendations Nos. that 262, ("R&Rs"), 263, 264.

motions. Tomlinson

Docket

recommended to the

partial that one

default of the

entered,

except

extent

motions sought duplicative and/or moot relief. Magistrate damages. Judge For Tomlinson the recommended reasons,

Additionally, specific Judge

awarding

following

Magistrate

1

For this Order's purposes, the Defaulting Defendants are Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Hüseyin Coban, Ali Karli, Moritz Johannas Wagner d/b/a C.B.O.D. Serviceburo Germany; Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, John Ralston, Karen Slacum a/k/a Karen Slocumb ("Ms. Slacum"), and Agents for Delaware Corporations, Inc. ("ADC"). For now, "Defaulting Defendants" does not include Defendants Aykut Hasan Boeluekbasi, Murat Ozkan and Hakan Metin. Plaintiffs have also moved for a default judgment against these Defendants. See Docket No. 247. That motion remains pending, and Messrs. Boeluekbasi, Ozkan, and Metin have opposed it, albeit in a somewhat cursory fashion. See Docket Nos. 255, 256, 257. 2

Tomlinson's R&Rs are ADOPTED IN THEIR ENTIRETY. Plaintiffs' partial default judgment motions

Consequently, as Docket

filed

Nos. 145, 149, 157, 173, 184 are GRANTED.

Plaintiffs' motion

for partial default judgment and an expedited inquest (Docket No. 189) is GRANTED IN PART AND DENIED AS MOOT IN PART. DISCUSSION I. The R&Rs Magistrate Judge Tomlinson recommended that: (i) the partial default judgment motions filed as Docket Nos. 145, 149, 157, 173, and 184 be granted; (ii) the partial default judgment and expedited inquest motion filed as Docket No. 189 be granted as to Defendants Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, and John Ralston, but denied as moot as to the other Defaulting Defendants, because this motion seeks the same relief that Docket Nos. 149, 157, 173, and 184 do, or relief that the Court already granted in Docket No. 240. receive severally Judge the Tomlinson following each

further damages,

recommended to be

that

Plaintiffs jointly and

assessed

against

Defaulting Defendant, except Ms. Slacum and ADCI2: 1. For Plaintiff Johannes Baumgartner Wirtschafts-Lind Vermogensberati-ING GMBH: (a) liquidated damages in the amount of $3,600,000; plus (b) statutory interest at a 9% annual rate, amounting to $951,582.24 through

2

A partial Default Judgment has already been issued against Ms. Slacum and ADCI, which, because it was issued at an earlier date, assesses less prejudgment interest. See Docket No. 240; Electronic Order dated September 30, 2010. 3

February 24, 2011, plus an additional $887.67 per day through the date of judgment.
2.

For Plaintiff Holger Knut Theiler for: (a) liquidated damages in the amount of $200,000; plus (b) statutory interest at a 9% annual rate, amounting to $80,043.603 through February 24, 2001, plus an additional $49.32 per day through the date of judgment. No party has filed any objections to Magistrate Judge

Tomlinson's

R&Rs.

And

the

Court and

finds free

them of

to

be

correct, error. See

comprehensive,

well-reasoned

clear

Consequently, the Court adopts them in their entirety.

Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (if no timely objections have been made, the "court need only satisfy itself that there is no clear error on the face of the record") (internal quotations omitted). The Court does, however, wish to clarify one minor ambiguity that has resulted from the separate default judgment motions, R&Rs, and the Court's earlier partial default judgment award against Ms. Slacum and ADCI. Defendant Defaulting is jointly and severally if the Namely, each Defaulting liable various with every other

Defendant--even

default

judgment Thus, for

motions and R&Rs place them in smaller groupings.

instance, although the Order entered as Docket No. 240 addressed

3

Holger Knut Theiler was originally owed $1.2 million but, after 92 days, successfully received reimbursement of $1 million. Thus, Magistrate Judge Tomlinson's recommendations include 92 days of interest on $1.2 million instead of $200,000. 4

only Ms. Slacum and ADCI, these Defendants are now jointly and severally liable with every Defaulting Defendant, not just each other. II. Current Interest Calculations The Baumgartner prejudgment R&Rs recommended awarding Plaintiff Johannes GMBH through

Wirtschafts-Lind interest in the

Vermogensberati-ING amount of $951,582.24

February 24, 2011, plus an additional $887.67 per day through the date of judgment. Twenty-one issued days her have R&Rs. passed Thus, since this

Magistrate

Judge

Tomlinson

Plaintiff is entitled to an additional $18,641.07 in interest, for a total prejudgment interest award of $970,223.31. The R&Rs recommended awarding Plaintiff Holger Knut Theiler prejudgment interest in the amount of $80,043.60 through February 24, 2001, plus an additional $49.32 per day through the date of judgment. Twenty-one days have passed since Magistrate Thus, Holger Knut Theiler is

Judge Tomlinson issued her R&Rs.

entitled to an additional $1,035.72 in interest, for a total prejudgment interest award of $81,079.32. CONCLUSION Magistrate Judge Tomlinson's R&Rs are ADOPTED IN THEIR ENTIRETY. See Docket Nos. 262, 263, 264. Plaintiffs' partial

default judgment motions filed as Docket Nos. 145, 149, 157, 173, 184 are GRANTED. Plaintiffs' motion for partial default 5

judgment and an expedited inquest (Docket No. 189) is GRANTED IN PART AND DENIED AS MOOT IN PART. Order: 1. A partial default judgment is entered in Plaintiffs' favor, and against Defendants Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Hüseyin Coban, Ali Karli, Moritz Johannas Wagner d/b/a C.B.O.D. Serviceburo Germany,4 on the state law claims of fraud, conversion, unjust enrichment, conspiracy and gross negligence. Defendants Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Hüseyin Coban, Ali Karli, Moritz Johannas Wagner d/b/a C.B.O.D. Serviceburo Germany; Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, and John Ralston are jointly and severally liable: a. To Plaintiff Johannes Baumgartner WirtschaftsLind Vermogensberati-ING GMBH for: (a) liquidated damages in the amount of $3,600,000; plus (b) prejudgment interest in the amount of $970,223.31; b. To Plaintiff Holger Knut Theiler for: (a) liquidated damages in the amount of $200,000; plus (b) prejudgment interest in the amount of $81,079.32. 3. The Clerk of the Court is directed to issue a judgment in Plaintiffs' favor on those amounts, against those Defendants. Additionally, the Clerk of the Court is directed to amend the judgment entered by Electronic Order on September 30, 2010 against Ms. Slacum and ADCI. The Amended Judgment should reflect that Ms. Slacum and ADCI are jointly and severally liable with Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Hüseyin Coban, Ali Karli, Moritz Johannas Wagner d/b/a C.B.O.D. Serviceburo Germany; As a consequence of this

2.

4.

4

This Court previously ordered a default judgment against Defendants Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, and John Ralston on liability, but deferred calculation of damages. See Docket Nos. 60, 61. 6

Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, John Ralston, and not just each other. 5. Any assets that Plaintiffs recover from any Defendant shall be deposited in the Court's registry pending this case's resolution or further order of the Court. Plaintiffs are directed to consult with Magistrate Judge Tomlinson concerning the proper procedure for depositing said assets. The Court shall retain jurisdiction of this matter for all purposes. Plaintiffs are ORDERED to serve a copy of this Order upon each Defaulting Defendant.

6. 7.

SO ORDERED /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: March 17, 2011 Central Islip, New York

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