United States of America v. Kowalski
DECISION and ORDERED, that Plaintiffs Third Motion (Dkt. No. 12) for default judgment is GRANTED; and it is further ORDERED, that judgment enter for Plaintiff in the amount of $34,478.28. Signed by Senior Judge Lawrence E. Kahn on October 22, 2013. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
JOHN E. KOWALSKI,
DECISION and ORDER
On January 21, 2012, Plaintiff commenced this action alleging that John E. Kowalski
(“Defendant”) defaulted on a promissory note. Dkt. No. 1 (“Complaint”). Now before the Court is
Plaintiff’s Third Motion for default judgment brought pursuant to Federal Rule of Civil Procedure
55(b)(2). Dkt. No. 12 (“Motion”).
Defendant is a resident of Cohoes, New York. Compl. ¶ 2. The Complaint alleges that
Defendant executed a promissory note to secure loans from the U.S. Department of Education, and
that he has failed to repay the loans in full. See generally id. Defendant did not file a responsive
pleading, and on March 5, 2012, the Clerk filed an Entry of default against Defendant at Plaintiff’s
request. Dkt. Nos. 4; 5. In its Motion, Plaintiff seeks an award of “the principal sum of $19,101.08
plus interest in the sum of $15,377.20 in interest at a variable rate, currently at 3.15% per annum,
for a total of $34,478.28.” Mot. at 4 ¶ 8.
“Federal Rule of Civil Procedure 55 provides a two-step process that the Court must follow
before it may enter a default judgment against a defendant.’” Elec. Creations Corp. v. Gigahertz,
Inc., No. 12-CV-1423, 2013 WL 3229125, at *3 (quoting Robertson v. Doe, No. 05-CV-7046, 2008
WL 2519894, at *3 (S.D.N.Y. June 19, 2008)).
First, under Rule 55(a), when a party fails to plead or otherwise defend . . . the clerk
must enter the party’s default. Second, pursuant to Rule 55(b)(2), the party seeking
default judgment is required to present its application for entry of judgment to the court.
. . . Notice of the application must be sent to the defaulting party so that it has an
opportunity to show cause why the court should not enter a default judgment.
Id. (citations and internal quotation marks omitted).
“When a default is entered, the defendant is deemed to have admitted all of the well-pleaded
factual allegations in the complaint pertaining to liability.” Bravado Int’l Grp. Merch. Servs., Inc. v.
Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.
U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). “While a default judgment constitutes an
admission of liability, the quantum of damages remains to be established by proof unless the amount
is liquidated or susceptible of mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d
Cir. 1974); see also Bravado Int’l, 655 F. Supp. 2d at 189. “[E]ven upon default, a court may not
rubber-stamp the non-defaulting party’s damages calculation, but rather must ensure that there is a
basis for the damages that are sought.” Robertson, 2008 WL 2519894, at *3. “The burden is on the
plaintiff to establish its entitlement to recovery.” Bravado Int’l, 655 F. Supp. 2d at 189. “While the
court must ensure that there is a basis for the damages specified in a default judgment, it may, but
need not, make the determination through a hearing.” Id. at 190 (internal quotation marks omitted).
Under Local Rule 55.2(b), the moving party must submit with its motion for default
judgment: (1) a clerk’s certificate of entry of default; (2) a proposed form of default judgment; (3) a
copy of the pleading to which no response has been made; and (4) an affidavit. The affidavit must
set forth that: (1) the party against whom judgment is sought is not an infant, incompetent, or in
military service; (2) the party against whom judgment is sought has defaulted in appearance in the
action; (3) service was properly effected under Federal Rule of Civil Procedure 4; (4) the amount
sought is justly due and owing, and no part has been paid; and (5) the disbursements sought to be
taxed have been made in the action or will necessarily be made or incurred. L.R. 55.2(b) (citing
Upon review of Plaintiff’s Motion, Plaintiff has complied with all applicable rules and
demonstrated that it is entitled to the relief sought. See generally Mot. The affidavits in support,
together with supporting documentation from the U.S. Department of Education, demonstrate the
amount owed by Defendant, who has defaulted in this action.
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Third Motion (Dkt. No. 12) for default judgment is
GRANTED; and it is further
ORDERED, that judgment enter for Plaintiff in the amount of $34,478.28; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on all parties.
IT IS SO ORDERED.
October 22, 2013
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