Donaldson Interiors, Inc. v. Alply Insulated Panels, LLC
Filing
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ORDER: For the reasons stated (PLEASE SEE ORDER FOR FURTHER DETAILS), plaintiff's motion for a default judgment (ECF No. 46 ) is granted; plaintiff's motion for a pre-motion conference (ECF No. 45 ) is terminated as moot; and defendant 39;s motion for a pre-motion conference (ECF No. 37 ) is dismissed. Plaintiff is directed to submit evidence regarding damages to the Court no later than sixty (60) days from the date of this Order. Should plaintiff fail to submit damages within sixty (60) days, the Clerk of the Court will be directed to mark this case closed. So Ordered by Judge Joan M. Azrack on 5/6/2019. (Ortiz, Grisel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DONALDSON INTERIORS, INC.,
Plaintiffs,
-againstALPLY INSULATED PANELS, LLC,
Defendant.
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AZRACK, United States District Judge:
For Online Publication Only
ORDER
16-cv-06970 (JMA) (AYS)
FILED
CLERK
5/6/2019 10:12 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Before the Court is the motion of plaintiff Donaldson Interiors, Inc. for default judgment
against defendant Alply Insulated Panels, LLC. For the reasons stated herein, plaintiff’s motion is
GRANTED 1 and plaintiff is directed to submit evidence to the Court concerning damages within
sixty (60) days of the date of this Order.
I. DISCUSSION
A. Defendant Defaulted
Plaintiff filed the complaint for breach of contract and indemnification on December 16,
2016. (ECF No. 1.) Defendant was properly served, but failed to timely respond, so the Clerk of
the Court issued a certificate of default on February 3, 2017. (ECF No. 8.) Defendant then
appeared and filed an answer to the complaint, after the parties agreed to vacate the default. (ECF
No. 10.) For more than a year and a half, the parties litigated this matter through counsel, until
November 2018 when counsel for defendant filed a motion to withdraw as counsel, citing disputes
between counsel and the defendant as well as substantial unpaid attorneys’ fees. (ECF No. 39.)
As plaintiff is receiving its requested relief, plaintiff’s motion for a pre-motion conference in anticipation of a motion
for default (ECF No. 45) is hereby terminated as moot.
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On November 13, 2018, Magistrate Judge Shields held a hearing and granted the motion to
withdraw. (ECF No. 42.) Judge Shields stayed discovery for thirty (30) days to permit defendant
to retain new counsel. (Id.) She warned defendant that, as a corporate entity, defendant could not
represent itself in the action, and failure to obtain new counsel could result in a default judgment.
(Id.) This order was properly served on defendant. (See ECF No. 44.)
Well over thirty days have passed, and to date, defendant has failed to obtain new counsel
or otherwise communicate with the Court. Accordingly, the defendant is in now default 2. See
Cabrera v. Canela, 14-cv-4874, 2018 U.S. Dist. LEXIS 92368, at *6 (E.D.N.Y. Apr. 19, 2018) (“I
therefore respectfully recommend that a default be entered against [defendant], as a corporation
cannot proceed pro se in federal court.”) - - - - --- - - - - - - - - - - - - - - - - by 2018 U.S. Dist.
report and recommendation adopted
LEXIS 89553 (E.D.N.Y. May 24, 2018); Nuriddinov v. Masada III, Inc., 15-cv-5875, 2016 U.S.
Dist. LEXIS 101703 (E.D.N.Y. July 28, 2016) - - - - --- - - - - - - - - - - - - - - - - by 2016 U.S.
report and recommendation adopted
Dist. LEXIS 208781 (E.D.N.Y. Aug. 15, 2016) (finding corporate defendant in default when it
failed to obtain counsel pursuant to court order).
B. Liability
When a defendant defaults, the Court is required to accept all of the factual allegations in
the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Finkel v.
Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). However, the Court also must determine whether
the allegations in the complaint establish the defendant’s liability as a matter of law. Id. Here,
the allegations in the complaint are sufficient to establish the defendant’s liability for breach of
contract.
As a result of defendant’s default, the motion for a pre-motion conference in anticipation of a motion for summary
judgment, (ECF No. 37), filed by former defense counsel, is dismissed
2
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C. Damages
“‘[W]hile a party’s default is deemed to constitute a concession of all well pleaded
allegations of liability, it is not considered an admission of damages.’” Bricklayers & Allied
Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d
182, 189 (2d Cir. 2015) (quoting Cement & Concrete Workers Dist. Council Welfare Fund v.
Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012)). The Court must conduct an
inquiry to “ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec.,
Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatlantic Marine Claims Agency,
Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)).
The instant motion does not include a request for damages. Accordingly, the Court cannot
at this time “ascertain the amount of damages with reasonable certainty.” Id. In order to award
damages for defendant’s default, plaintiff must submit evidence regarding damages to the Court
no later than sixty (60) days from the date of this Order.
II. CONCLUSION
For the reasons stated above, plaintiff’s motion for a default judgment (ECF No. 46) is
granted; plaintiff’s motion for a pre-motion conference (ECF No. 45) is terminated as moot; and
defendant’s motion for a pre-motion conference (ECF No. 37) is dismissed. Plaintiff is directed
to submit evidence regarding damages to the Court no later than sixty (60) days from the date of
this Order. Should plaintiff fail to submit damages within sixty (60) days, the Clerk of the Court
will be directed to mark this case closed.
SO ORDERED.
Dated: May 6, 2019
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE
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