United States of America v. Bunbury
Filing
11
MEMORANDUM & ORDER granting in part and denying in part 10 Motion for Default Judgment; For the foregoing reasons, Plaintiff's motion for a default judgment (Docket Entry 10) is GRANTED IN PART and DENIED IN PART. The Clerk of the Court is di rected to enter a judgment in Plaintiff's favor in the amount of $13,161.88 in unpaid principal, $10,004.30 in accrued interest, an additional $2.57 in interest for each day after August 19, 2015 until judgment is entered, 6;65.00 in costs, and post-judgment interest calculated pursuant to 28 U.S.C. § 1961. Upon entry of the judgment, the Clerk of the Court is further directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 12/15/2015. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
UNITED STATES OF AMERICA,
Plaintiff,
MEMORANDUM & ORDER
15-CV-3764(JS)
-againstDEXTER BUNBURY,
Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Michael T. Sucher, Esq.
26 Court Street, Suite 2412
Brooklyn, NY 11242
For Defendant:
No appearance
SEYBERT, District Judge:
Pending before the Court is Plaintiff’s motion for entry
of
a
default
judgment
(“Defendant”).
against
(Docket Entry 10.)
defendant
Dexter
Bunbury
For the following reasons,
Plaintiff’s motion is GRANTED.
BACKGROUND
On
June
29,
2015,
Plaintiff
commenced
this
against Defendant seeking unpaid student loan payments.
Compl., Docket Entry 1.)
July 14, 2015.
action
(See
The Summons and Complaint was served on
(Aff. of Service, Docket Entry 6.)
Defendant did
not respond to the Complaint and the Clerk of the Court noted
Defendant’s default on August 5, 2015.
Docket Entry 8.)
(Clerk’s Cert. of Default,
The Complaint annexes a Certificate of Indebtedness
dated June 16, 2015 in which the United States Department of
Education (“Department of Education”) certifies that on or about
June 3, 1999, Defendant executed a promissory note to secure a
Department of Education Direct Consolidation loan (the “Loan”).
(Compl. at 3.)1
The Department of Education made the Loan under
the William D. Ford Federal Direct Loan Program pursuant to Title
IV, Part D of the Higher Education Act of 1965, as amended, 20
U.S.C. § 1087a, et seq.
(Compl. at 3.)
The Loan was disbursed on
January 16, 2001 for $11,690.00 at 7.125% interest per annum.
(Compl. at 3.)
The
Certificate
of
Indebtedness
states
that
the
Department of Education demanded payment and Defendant defaulted
on the Loan on July 11, 2005.
(Compl. at 3.)
As of May 28, 2015,
Defendant owed $13,161.88 in principal and $9,790.99 in interest
for a total of $22,952.87.
(Compl. at 3.)
Interest accrues on
the principal of the Loan at the rate of $2.57 per day.
(Compl.
at 3.)
On August 20, 2015, Plaintiff filed a motion for default
judgment, which is unopposed.
(Pl.’s Mot., Docket Entry 10.)
In
support of its motion, Plaintiff annexes the loan application and
promissory note executed by Defendant on June 3, 1999.
(Pl.’s
For ease of reference, the Court will refer to the Electronic
Case Filing pagination of the Complaint.
1
2
Mot., Ex. 3, Docket Entry 10-3.)
Plaintiff seeks the entry of a
default judgment in the total sum of $23,631.18, which represents
the following:
(1) Loan principal balance ($13,161.88); (2) total
interest accrued through August 19, 2015 ($10,004.30); and (3)
costs and disbursements ($400.00 filing fee and $65.00 expenses
for service of the Summons and Complaint).
Entry 10-1, ¶¶ 8-11.)
(Pl.’s Affm., Docket
Plaintiff is also seeking per diem interest
of $2.57 from August 19, 2015 through the date the default judgment
is entered.
states
(Pl.’s Affm. ¶ 12.)
that
“[p]ost-judgment
pursuant to 28 U.S.C. § 1961.”
10-2.)
Plaintiff’s proposed judgment
interest
shall
be
calculated,
(Pl.’s Mot., Ex. 2, Docket Entry
However, Plaintiff is not requesting attorney’s fees in
connection with its motion.
(Pl.’s Affm. ¶ 9.)
DISCUSSION
I.
Liability
Federal Rule of Civil Procedure 55 sets forth a two-step
process to obtain a default judgment: (1) first, “[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”;
and (2) second, “after a default has been entered against a
defendant, and the defendant fails to appear or move to set aside
the default under Rule 55(c), the court may, on plaintiff’s motion,
enter a default judgment.”
FED. R. CIV. P. 55(a), (b)(2), and (c);
3
U.S. v. Kemp, No. 15-CV-2419, 2015 WL 6620624, at *2 (E.D.N.Y.
Oct. 30, 2015) (citing FED. R. CIV. P. 55(b)(2)).
A defendant’s
default constitutes an admission of liability; thus, all wellpleaded allegations in the Complaint pertaining to liability are
deemed true in connection with a motion for default.
Joe Hand
Promotions, Inc. v. El Norteno Rest. Corp., No. 06-CV-1878, 2007
WL 2891016, at *2 (E.D.N.Y. Sept. 28, 2007).
Nevertheless, in
determining a motion for default judgment, the Court is responsible
for ensuring that the pleadings provide an appropriate basis for
liability.
Kemp, 2015 WL 662064, at *2.
The determination of whether to grant a default judgment
is in the district court’s sound discretion.
Shah v. N.Y. State
Dep’t of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999).
The court
may consider factors that include “‘whether plaintiff has been
substantially prejudiced by the delay involved[] and whether the
grounds for default are clearly established or are in doubt.’”
O’Callahan v. Sifre, 242 F.R.D. 69, 73 (S.D.N.Y. 2007) (quoting
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2685 (3d ed. 1998)) (alteration in
original).
The Court’s analysis on a motion for default is guided
by the same factors that apply to a motion to set aside entry of
a
default,
willful;
namely:
(2)
“(1)
whether
whether
defendant
the
has
a
defendant’s
meritorious
default
defense
was
to
plaintiff’s claims; and (3) the level of prejudice the non4
defaulting party would suffer as a result of the denial of the
motion for default judgment.”
Mason Tenders Dist. Council v. Duce
Constr. Corp., No. 02-CV-9044, 2003 WL 1960584, at *2 (S.D.N.Y.
Apr. 25, 2003) (citation omitted).
Defendant’s
failure
to
respond
sufficiently demonstrates willfulness.
to
the
Complaint
See, e.g., Indymac Bank v.
Nat’l Settlement Agency, Inc., No. 07-CV-6865, 2007 WL 4468652, at
*1 (S.D.N.Y. Dec. 20, 2007) (Holding that defendants’ failure to
appear in the action and respond to the Complaint and motion for
default “indicate willful conduct.”).
finds
that
the
Complaint’s
Additionally, the Court
allegations
regarding
Defendant’s
failure to make payments in connection with the Loan, which have
been deemed admitted in light of Defendant’s default, establish
Defendant’s liability.
at *2.
See Joe Hand Promotions, 2007 WL 2891016,
See also Kemp, 2015 WL 6620624, at *2 (Holding that
plaintiff’s allegations in the complaint and the certificates of
indebtedness established defendant’s liability in connection with
a motion for default judgment regarding claims for unpaid student
loan payments.)
prejudicial
to
Finally, the denial of this motion would be
Plaintiff
“as
there
are
available to secure relief in this Court.”
no
additional
steps
Bridge Oil Ltd. v.
Emerald Reefer Lines, L.L.C., No. 06-CV-14226, 2008 WL 5560868, at
*2 (S.D.N.Y. Oct. 27, 2008).
Accordingly, Plaintiff’s motion for
a default judgment is GRANTED.
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II.
Damages
While a party’s default constitutes an admission of all
well-pleaded
allegations
regarding
considered an admission of damages.”
Plaintiff
bears
the
burden
‘reasonable certainty.’”
of
liability,
“it
is
not
On a motion for default,
establishing
damages
“with
a
Kemp, 2015 WL 6620624, at *2 (quoting
Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155
(2d Cir. 1999)). In determining the appropriate amount of damages,
it is within the Court’s discretion to conduct an evidentiary
hearing or rely on documentary proof.
U.S. v. Davis, No. 05-CV-
4447, 2007 WL 2287889, at *2 (E.D.N.Y. Aug. 8, 2007).
Here, Plaintiff seeks $13,161.88 in principal on the
Loan and $10,004.30 in accrued interest, plus additional per diem
interest in the amount of $2.57 from August 19, 2015 through the
date of judgment.
(Pl.’s Affm. ¶¶ 8-11.)
In support of this
request, Plaintiff references the Certificate of Indebtedness
prepared by the Department of Education, which is annexed to the
Complaint and reflects that as of May 28, 2015, Defendant owed
$13,161.88 in principal and $9,790.99 in interest with interest
accruing at the rate of $2.57 per day.
(Compl. at 3.)
The Court finds that the Certificate of Indebtedness
proffered by Plaintiff establishes damages as of May 28, 2015 with
a reasonable certainty.
additional
interest
The Court’s calculation confirms that the
that
accrued
6
between
May
28,
2015
and
August 19, 2015 at the rate of $2.57 per day results in total
accrued interest of $10,004.30 as of August 19, 2015. Accordingly,
Plaintiff is entitled to the amount requested ($13,161.88 in
principal and $10,004.30 in interest), plus per diem interest of
$2.57 for each day after August 19, 2015 through the date of the
judgment and post-judgment interest calculated pursuant to 28
U.S.C. § 1961.
In addition to damages, Plaintiff seeks an award of
costs.
The Higher Education Act of 1965 provides that “a borrower
who has defaulted on a loan made under this subchapter . . . shall
be required to pay . . . reasonable collection costs.”
§ 1091a(b)(1).
20 U.S.C.
See also U.S. v. Hinds, No. 11-CV-0169, 2011 WL
3555837, at *4 (E.D.N.Y. June 27, 2011), report and recommendation
adopted, 2011 WL 3555762 (E.D.N.Y. Aug. 11, 2011).
Specifically,
Plaintiff seeks to recover (1) the Court’s $400.00 filing fee and
(2) $65.00 in out-of-pocket expenses for the service of the Summons
and Complaint.
(Pl.’s Affm. ¶ 10.)
While 28 U.S.C. § 2412 provides that an amount equal to
the filing fee may be awarded in a civil action commenced by the
United States, the United States is not required to pay a filing
fee when initiating an action in federal court.
WL 3555837, at *4 (collecting cases).
See Hinds, 2011
The docket does not reflect
the payment of a filing fee and Plaintiff has not provided any
documentation of the payment of such a fee.
7
As Plaintiff has not
specified any reason why the Court should award $400 for a fee
that Plaintiff did not pay, the Court DENIES Plaintiff’s request
for an award of $400 in filing fees.
See U.S. v. Benain, No. 11-
CV-2307, 2011 WL 5838488, at *1 (E.D.N.Y. Nov. 18, 2011) (Denying
plaintiff’s request for an award of $350 in filing fees where
plaintiff failed to provide documentation that a filing fee was
paid and did not articulate a reason why the court should render
such an award.); U.S. v. Freeman, No. 09-CV-4036, 2010 WL 3522812,
at *2 n.2 (E.D.N.Y. July 26, 2010).
Plaintiff
has,
however,
provided
documentation
in
support of the requested $65.00 in out-of-pocket expenses for
service of the Summons and Complaint.
(Pl.’s Mot., Ex. 4.)
Accordingly, the Court GRANTS Plaintiff’s request for an award of
$65.00 in costs.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for a
default judgment (Docket Entry 10) is GRANTED IN PART and DENIED
IN PART.
in
The Clerk of the Court is directed to enter a judgment
Plaintiff’s
favor
in
the
amount
of
$13,161.88
in
unpaid
principal, $10,004.30 in accrued interest, an additional $2.57 in
8
interest for each day after August 19, 2015 until judgment is
entered, $65.00 in costs, and post-judgment interest calculated
pursuant to 28 U.S.C. § 1961.
Upon entry of the judgment, the
Clerk of the Court is further directed to mark this matter CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
December
15 , 2015
Central Islip, New York
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