United States of America v. Files

Filing 10

MEMORANDUM & ORDER granting 9 Motion for Default Judgment; For the foregoing reasons, Plaintiff's motion for a default judgment (Docket Entry 9) is GRANTED. The Clerk of the Court is directed to enter a judgment in Plaintiff's favor in the amount set forth herein. 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 8/2/2017. C/ECF (Valle, Christine)

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

MEMORANDUM & ORDER
16-CV-6065(JS)

-againstGOLDIE M. FILES,
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

the

United

States

of

America’s motion for entry of a default judgment against defendant
Goldie

M.

Files

(“Defendant”).

(Docket

Entry

9.)

For

the

following reasons, the motion is GRANTED.
BACKGROUND
On

November

2,

2016,

the

United

States

of

America

(“Plaintiff”) commenced this action against Defendant seeking
unpaid student loan payments.

(See Compl., Docket Entry 1.)

Summons and Complaint was served on November 11, 2016.
Serv.,

Docket

Entry

6.)

Defendant

did

not

respond

The

(Aff. of
to

the

Complaint, and the Clerk of the Court noted Defendant’s default on
December 22, 2016.

(Clerk’s Entry of Default, Docket Entry 8.)

Annexed

to

the

Complaint

is

a

Certificate

of

Indebtedness dated October 19, 2016, in which the United States
Department of Education certifies that on or about September 9,
1991, Defendant executed a promissory note to secure a loan from
Barnett Bank (“the Bank”) in Jacksonville, Florida (the “Loan”).
(Cert. of Indebtedness, Compl. at 3.)

The Loan was guaranteed by

the Florida Department of Education and reinsured by the United
States Department of Education under programs authorized by Title
IV, Part B of the Higher Education Act of 1965, as amended, 20
U.S.C. § 1071, et seq.

The Loan was disbursed beginning on

November 14, 1991 for $2,625.00 at a variable rate of interest.
(Cert. of Indebtedness.)
The Certificate of Indebtedness states that the Bank
demanded payment and Defendant defaulted on the Loan on August 11,
1993.

As guarantor, the Florida Department of Education paid a

claim to the Bank and attempted to collect the amount due from
Defendant.

When those collection efforts failed, the Florida

Department of Education assigned its interest in the Loan to the
United States Department of Education.

(Cert. of Indebtedness.)

As of October 19, 2016, Defendant owed $2,721.15 in principal and
$2,101.33

in

Indebtedness.)

interest

for

a

total

of

$4,822.48.

(Cert.

of

The current rate of interest as of October 19,

2016 was 3.6 percent.

(Cert. of Indebtedness.)

2

Additionally,

interest accrues on the principal of the Loan at the rate of $0.27
per day.

(Cert. of Indebtedness.)
On December 27, 2016, Plaintiff filed a motion for

default judgment, which is unopposed.
9.)

In

support

application

and

September 9, 1991.
seeks

the

entry

of

its

motion,

promissory

note

(Pl.’s Mot., Docket Entry

Plaintiff
executed

by

of

a

default

judgment

in

($2,721.15);

(2)

total

the

the

loan

Defendant

(Appl. and Note, Docket Entry 9-3.)

$4,906.11, which represents the following:
balance

annexes

on

Plaintiff

total

sum

of

(1) Loan principal

interest

accrued

through

October 19, 2016 ($2,119.96); and (3) costs and disbursements
($65.00

for

service

of

the

Summons

and

Complaint).

(Pl.’s

Affirmation, Docket Entry 9-1, ¶¶ 8-11.) Plaintiff is also seeking
per diem interest of $0.27 from December 27, 2016 through the date
the

default

judgment

is

entered

and

calculated pursuant to 28 U.S.C. § 1961.
Proposed

J.,

Docket

Entry

requesting attorneys’ fees.

9-2.)

post-judgment

interest

(Pl.’s Affirmation ¶ 12;

However,

Plaintiff

is

not

(Pl.’s Affirmation ¶ 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
3

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);

United States 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,
on a motion for default, the well-pleaded allegations in the
complaint pertaining to liability are deemed true.

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
4

original).

The Court’s analysis on a motion for default is guided

by factors such as: “(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 nondefaulting 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).
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 or 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.

See Joe Hand Promotions, 2007 WL 2891016,

at *2; Kemp, 2015 WL 6620624, at *2.
motion

would

be

prejudicial

to

Finally, the denial of this

Plaintiff

“as

there

are

no

additional steps available to secure relief in this Court.” 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).
motion for a default judgment is GRANTED.
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Accordingly, Plaintiff’s

II.

Damages
While a party’s default constitutes an admission of all

well-pleaded

allegations

regarding

liability,

considered an admission of damages.’”

“‘it

is

not

Kemp, 2015 WL 6620624, at

*2 (quoting Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp.,
973 F.2d 155, 158 (2d Cir. 1992)).

On a motion for default,

Plaintiff bears the burden of establishing damages to a reasonable
degree of certainty.

See Kemp, 2015 WL 6620624, at *2.

In

determining the appropriate amount of damages, it is within the
Court’s discretion to conduct an evidentiary hearing or rely on
documentary proof.

United States v. Davis, No. 05-CV-4447, 2007

WL 2287889, at *2 (E.D.N.Y. Aug. 8, 2007).
Here, Plaintiff seeks $2,721.15 in principal on the Loan
and $2,119.96 in accrued interest, plus additional interest in the
amount of $0.27 per day from December, 27, 2016 through the date
of judgment.

(Pl.’s Affirmation ¶¶ 6-12.)

In support of this

request, Plaintiff references the Certificate of Indebtedness
prepared by the Department of Education, which reflects that as of
October

19,

2016,

Defendant

owed

$2,721.15

in

principal

and

$2,101.33 in interest with additional interest accruing at the
rate of $0.27 per day.

(Cert. of Indebtedness.)

The Court finds that the Certificate of Indebtedness
proffered by Plaintiff establishes damages as of October 19, 2016
with a reasonable certainty.

The Court’s calculation confirms
6

that the additional interest that accrued between October 19, 2016
and December 27, 2016 at the rate of $0.27 per day results in total
accrued

interest

Accordingly,

of

Plaintiff

$2,119.96
is

as

entitled

of
to

December
the

amount

27,

2016.

requested

($2,721.15 in principal and $2,119.96 in interest), plus per diem
interest of $0.27 for each day after December 27, 2016 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 United States v. Hinds, No. 11-CV-0169,

2011 WL 3555837, at *4 (E.D.N.Y. June 27, 2011), R&R adopted, 2011
WL 3555762 (E.D.N.Y. Aug. 11, 2011). Specifically, Plaintiff seeks
to recover $65.00 in out-of-pocket expenses for the service of the
Summons and Complaint and has provided an invoice documenting that
expense.

(Pl.’s Affirmation ¶ 10; Invoice, Docket Entry 9-4.)

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 9) is GRANTED. The Clerk of the
Court is directed to enter a judgment in Plaintiff’s favor in the
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amount of $2,721.15 in unpaid principal, $2,119.96 in accrued
interest, an additional $0.27 in interest for each day after
December 27, 2016 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:

August
2 , 2017
Central Islip, New York

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