United States of America v. Jordan

Filing 7

MEMORANDUM AND ORDER granting 4 Motion for Entry of Default. The Government'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 $2,978.03 p lus eighteen cents per day from April 15, 2011 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 3/28/12. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
UNITED STATES OF AMERICA,
Plaintiff,
-against-

MEMORANDUM & ORDER
11-CV-1867(JS)

KENNETH R. JORDAN,
Defendant.
--------------------------------------X
APPEARANCES
For Plaintiff:
Michael T. Sucher, Esq.
26 Court Street, Suite 2412
Brooklyn, NY 11242
For Defendant:

No appearances.

SEYBERT, District Judge:
On
(“Plaintiff”

April
or

the

15,

2011,

the

“Government”)

United
sued

States

Defendant

of

America

Kenneth

R.

Jordan (“Jordan” or the “Defendant”) to collect on a student
loan agreement on which the Defendant is now in default.
The Defendant neither responded to the Complaint nor
requested additional time to respond.

Plaintiff moved for a

default judgment pursuant to Federal Rule of Civil Procedure
55(b).

(Docket Entry 4).

The Clerk of the Court thereafter

noted the Defendant’s default.

(Docket Entry 5.)

DISCUSSION
For the following reasons, the Government’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,

2007)

Realty

(citing

Corp.,

973

Greyhound
F.2d

Exhibitgroup,

155,

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).
court

In determining whether to grant a default judgment, the
may

plaintiff
involved

consider
has

and

been
whether

“numerous

factors,

substantially
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.

2

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

(quoting

neglect”)

Feely

v.

(second

Whitman

alteration

Corp.,

65

F.

in
Supp.

the
2d

original)
164,

171

(S.D.N.Y. 1999)).
As to the first factor, the failure of the Defendant
to

respond

wilfulness.

to

the

Complaint

sufficiently

demonstrates

See, e.g., Indymac Bank v. Nat'l Settlement Agency,

3

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 May 2, 2011
with a Summons and a copy of the Complaint.

(Docket Entry 3).

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
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.

4

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 $1,300.00 and for a current interest balance
of $1,278.03, with prejudgment interest accruing at a rate of
5.00% per annum ($0.18 per diem after April 15, 2011).
at 2.)1

(Compl.

The Government’s affirmation in support of its default

judgment motion also requests legal costs, which are the $350
1

The Certificate of Indebtedness states that, as of March 17,
2011, Jordan owed $1,273.58 and that interest was accruing at
$0.18 per day (5% on $1,300 in outstanding principal). (Docket
Entry 1 at 4.)
The Complaint, which was filed on April 15,
2011, asserts that Jordan’s then-current interest balance was
$1,278.03. (Id. at 2.) The Court’s calculations actually yield
a slightly higher interest balance.
The Court will use the
lower amount alleged in the Complaint as the basis for its
judgment.
Similarly, the Government’s affirmation in support of its
default judgment lists $1,288.36 as Jordan’s interest balance,
which was apparently current as of June 8, 2011. (Docket Entry
4-5). Because this Memorandum & Order directs the Clerk of the
Court to calculate interest at $0.18 per day from April 15,
2011, the date of filing, there is no need to consider the
interest amount set forth in the Government’s affirmation.
5

filing fee and a $50 fee for service of process.
4-2 at 6).
simply

(Docket Entry

Calculation of damages in this case, therefore,

involves

adding

these

amounts

to

reach

a

total

of

$2,978.03 and then adding eighteen cents per day from April 15,
2011 through the date of judgment.
CONCLUSION
The
GRANTED.

Government’s

motion

for

a

default

judgment

is

The Clerk of the Court is respectfully directed to

enter judgment against the Defendant in the amount of $2,978.03
plus eighteen cents per day from April 15, 2011 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
28 , 2012
Central Islip, New York

6