Allstate Insurance Company et al v. Lopez et al

Filing 90

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Tomlinson's R&R (Docket Entry 86) is ADOPTED in its entirety and Plaintiffs' motion for default judgment and entry of final judgment (Docket Entry 84) is DENIED WITHOUT PREJUDIC E and with leave to renew. The Court construes Plaintiffs' Response (Docket Entry 88) as a motion to renew their motion for default judgment and REFERS Plaintiffs' Response to Judge Tomlinson for a report and recommendation on whether Plain tiffs' motion should be granted and, if necessary, to determine the appropriate amount of damages, costs, and/or fees to be awarded. Plaintiffs are directed to submit the excel spreadsheet(s) discussed in the R&R within thirty (30) days of the date of this Memorandum and Order. Plaintiffs are further directed to serve a copy of this Memorandum and Order on the Yehudian Defendants by overnight mail and first-class mail and file proof of service on ECF within fourteen (14) days of the date of this Memorandum and Order. So Ordered by Judge Joanna Seybert on 9/13/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------X
ALLSTATE INSURANCE COMPANY, ALLSTATE
INDEMNITY COMPANY, ALLSTATE PROPERTY &
CASUALTY INSURANCE COMPANY, and
NORTHBROOK INDEMNITY COMPANY,
Plaintiffs,
-against-

MEMORANDUM & ORDER
14-CV-4826 (JS)(AKT)

IRAGE YEHUDIAN, M.D., PADOVA PHYSICAL
REHABILITATION MEDICINE, P.C., and
PROGRESSIVE REHABILITATION FACILITY, P.C.,
Defendants.
-----------------------------------------X
APPEARANCES
For Plaintiffs:
Jasmine Garcia-Vieux, Esq.
Michael W. Whitcher, Esq.
Nathan A. Tilden, Esq.
Richard D. King, Jr., Esq.
Smith & Brink PC
1205 Franklin Avenue, Suite 260
Garden City, NY 11530
For Defendants:

No appearances1

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge A. Kathleen
Tomlinson’s Report and Recommendation (“R&R”) recommending that
Plaintiffs’ motion for default judgment and entry of final judgment
be temporarily denied without prejudice and with leave to renew,

While defendants Irage Yehudian, M.D., Padova Physical
Rehabilitation Medicine, P.C. (“Padova”), and Progressive
Rehabilitation Facility, P.C. (“Progressive” and collectively,
the “Yehudian Defendants”) were represented by counsel earlier
in this action, they failed to retain new counsel after this
Court granted their former counsel’s motion to withdraw in May
2015. (See May 2015 Minute Order, Docket Entry 59.)
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and that the issue of damages be deferred until Plaintiffs provide
additional information and documentation.

(R&R, Docket Entry 86.)

For the following reasons, the Court ADOPTS Judge Tomlinson’s R&R
in its entirety.
BACKGROUND
The Court presumes familiarity with the underlying facts
of this matter, which are set forth in detail in the R&R.

Briefly,

on August 14, 2014, Plaintiffs commenced this action against the
Yehudian

Defendants

and

a

number

of

former

co-defendants.2

Plaintiffs asserted claims under the Racketeering Influenced and
Corrupt

Organizations

Act

and

for

common

law

fraud,

unjust

enrichment, and declaratory relief in connection with an alleged
health care billing fraud scheme.

(See generally Compl.)

As previously noted, on May 12, 2015, the Court granted
the Yehudian Defendants’ counsel’s motion to withdraw and directed
the Yehudian Defendants to retain counsel within thirty days.

The

Court indicated that if the Yehudian Defendants failed to retain
counsel, Plaintiffs would be permitted to move for a default
judgment.

(See May 2015 Minute Order.)

Defendants have not retained counsel.

To date, the Yehudian

On February 25, 2016, Judge

In 2015, Plaintiffs filed stipulations dismissing
prejudice their claims against all defendants aside
Yehudian Defendants. (See Docket Entries 70, 73.)
subsequently “So Ordered” these stipulations. (See
Docket Entries 71, 74.)
2

2

with
from the
The Court
Orders,

Tomlinson issued a report and recommendation recommending that
this Court strike the Yehudian Defendants’ answers, direct the
Clerk of the Court to enter a certificate of default against the
Yehudian Defendants, and permit Plaintiffs to file a motion for
default judgment (the “February 2016 R&R”).
at 1-2.)
2016.

(See Docket Entry 77,

The Court adopted the February 2016 R&R on August 2,

(See Docket Entry 80.)
On September 16, 2016, Plaintiffs filed a motion for

default judgment and entry of final judgment as to the Yehudian
Defendants.

(Pls.’ Mot., Docket Entry 84.)

On January 12, 2017,

the Court referred Plaintiffs’ motion to Judge Tomlinson for an
R&R on whether the motion should be granted and, if necessary, to
determine the appropriate amount of damages, costs, and/or fees to
be awarded.

(See Ref. Order, Docket Entry 85.)

On August 23, 2017, Judge Tomlinson issued her R&R
recommending that Plaintiffs’ motion be temporarily denied without
prejudice and with leave to renew.

(R&R at 2.)

Judge Tomlinson

noted that Plaintiffs only sought a default judgment against the
Yehudian Defendants with respect to Counts VII-X, XV-XVI, and XXXXI of the Complaint, but did not indicate whether they intend to
withdraw Counts XIII and XIV.

(R&R at 10.)

Judge Tomlinson

recommended that Plaintiffs be directed to file a Stipulation
confirming their withdrawal of Counts XIII and XIV, which were not
addressed in Plaintiffs’ motion.
3

(R&R at 10.)

Judge Tomlinson

also concluded that Plaintiffs failed to satisfy their burden of
proof with respect to their request for damages.

(R&R at 11.)

Judge Tomlinson noted that Plaintiffs’ exhibits listing payments
remitted to Padova and Progressive were submitted in .pdf format
and, thus, “there does not appear to be any reasonable means of
verifying the accuracy of [Plaintiffs’] calculation, which the
Court must do.”

(R&R at 12.)

Judge Tomlinson recommended that

the Court direct Plaintiffs to submit a list of these payments in
an excel spreadsheet on a compact disc or another device.
12.)

(R&R at

Finally, Judge Tomlinson recommended that Plaintiffs be

directed to confirm that they are not seeking attorneys’ fees and
costs in connection with their motion.

(R&R at 12.)

DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

in
by

whole
the

or

in

part,

magistrate

the

judge.”

findings
28

and

U.S.C.

§ 636(b)(1)(C). 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.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen days of service of
the R&R.

The time for filing objections has expired, and no party

has objected.

Accordingly, all objections are hereby deemed to

have been waived. Upon careful review and consideration, the Court
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finds Judge Tomlinson’s R&R to be comprehensive, well-reasoned,
and free of clear error, and it ADOPTS the R&R in its entirety.
The Court notes that on September 6, 2017, Plaintiffs
filed a response to the R&R in which they confirmed that they
intend to withdraw Counts XIII and XIV of the Complaint against
the Yehudian Defendants and that they are not seeking attorneys’
fees, costs, or disbursements in connection with their motion for
default judgment (“Plaintiffs’ Response”).3
Docket Entry 88.)

(See Pls.’ Resp.,

Plaintiffs also filed a Stipulation withdrawing

Counts XIII and XIV against the Yehudian Defendants.

(See Pls.’

Stip., Docket Entry 89.)
The Court construes Plaintiffs’ Response as a motion to
renew their motion for default judgment in accordance with the
recommendations set forth in the R&R. The Court REFERS Plaintiffs’
Response to Judge Tomlinson for a report and recommendation on
whether Plaintiffs’ motion should be granted and, if necessary, to
determine the appropriate amount of damages, costs, and/or fees to
be

awarded.

Plaintiffs

are

directed

to

submit

the

excel

spreadsheet(s) discussed in the R&R within thirty (30) days of the
date of this Memorandum and Order.

Plaintiffs indicated that a compact disc containing excel
spreadsheets of their payments to Padova and Progressive will be
“submitted to the Court under separate cover.” (Pls.’ Resp.
at 3.)
3

5

CONCLUSION
Judge Tomlinson’s R&R (Docket Entry 86) is ADOPTED in
its entirety and Plaintiffs’ motion for default judgment and entry
of final judgment (Docket Entry 84) is DENIED WITHOUT PREJUDICE
and with leave to renew.

The Court construes Plaintiffs’ Response

(Docket Entry 88) as a motion to renew their motion for default
judgment and REFERS Plaintiffs’ Response to Judge Tomlinson for a
report and recommendation on whether Plaintiffs’ motion should be
granted and, if necessary, to determine the appropriate amount of
damages, costs, and/or fees to be awarded.
Plaintiffs

are

directed

to

submit

the

excel

spreadsheet(s) discussed in the R&R within thirty (30) days of the
date of this Memorandum and Order. Plaintiffs are further directed
to serve a copy of this Memorandum and Order on the Yehudian
Defendants by overnight mail and first-class mail and file proof
of service on ECF within fourteen (14) days of the date of this
Memorandum and Order.

SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
13 , 2017
Central Islip, New York

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