United States of America v. Thomas

Filing 11

DECISION AND ORDER granting Pltf's 8 Motion for Default Judgment for $10,762.51. Signed by Senior Judge Thomas J. McAvoy on 2/25/13. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------UNITED STATES OF AMERICA,
Plaintiff,
v.

6:12-CV-253

CHRISTOPHER THOMAS
Defendant.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION & ORDER
I. BACKGROUND
Plaintiff commenced this action seeking damages for an unpaid student loan,
including interest, costs and fees. Dkt. #1, ¶ 2. Presently before the Court is Plaintiff’s
Motion for a Default Judgment pursuant to Fed. R. Civ. P. 55(b)(2).
II. DISCUSSION
Plaintiff commenced this action on February 10, 2012. To date, Defendant
neither answered nor otherwise appeared in this matter. Dkt. #5, ¶ 2(e). Pursuant to
Fed. R. Civ. P. 55(a), Plaintiff requested that the Court Clerk enter default. Dkt. #5.
The Court Clerk entered default on July 10, 2012. On July 11, 2012, Plaintiff filed and
served a motion for default judgment. Dkt. #8. Pursuant to Local Rule 7.1(b)(1),
opposition papers were due August 2, 2012. However, Defendant did not oppose the
Motion.

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To obtain a default judgment, a plaintiff must satisfy the procedural requirements
of Fed. R. Civ. P. 55 and Local Rule 55.2. See Chao v. Party Rental Enters., Inc., 2008
WL 3851812, at *5 (N.D.N.Y. Aug. 15, 2008). Local Rule 55.2 requires a plaintiff to
accompany its motion with a court clerk's entry of default certificate, a proposed form of
default judgment, and a copy of the pleading to which no response has been made.
See L.R. 55.2(b). The moving party must include an affidavit setting forth that: 1) the
responding party is not an infant, incompetent, or in the military service; 2) the
responding party has defaulted in appearance in the action; 3) service was proper
under Fed. R. Civ. P. 4; 4) the amount sought is justly due and owing and that 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. See L.R. 55.2(a). Plaintiff satisfied the
procedural requirements of Fed. R. Civ. P. 55 and Local Rule 55.2. See Dkt. ## 4, 8.
Defendant's default serves as an admission of all well-pleaded allegations in the
Complaint. See Volkswagen A.G. v. V.W. Parts, Inc., 2009 WL 1045995, at *1
(N.D.N.Y. Apr. 20, 2009). Therefore, based on the default, Defendant admits the
following facts: 1) on or about October 28, 1985, Defendant executed a promissory note
to secure $2,500.00 from Norwest Bank South Dakota, N.A.; 2) on or about February
25, 1981, Defendant executed a promissory note to secure $1,100.00 from Oneida
National Bank & Trust Co.; 3) the total loan debt owed to the Department of Education
of the United States of America for the Norwest promissory note is $3,853.29,1 with
prejudgment interest accruing at a rate of nine-percent per annum; 4) the total loan debt

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This amount is the sum of the current principal of $1,201.08 plus the current capitalized interest balance
and accrued interest of $2,652.21 owed as of February 10, 2012. See Dkt. #1, Ex. A.

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owed to the Department of Education of the United States of America for the Oneida
note is $6,909.22,2 with prejudgment interest accruing at a rate of eight-percent per
annum; 5) demand was made upon Defendant for payment of the indebtedness; and 6)
Defendant has not paid. Dkt. # 1. These allegations are sufficient to establish
Defendant's liability for a breach of contract. See Marks v. N.Y. Univ., 61 F. Supp. 2d
81, 88 (S.D.N.Y. Aug. 31, 1999) (indicating elements of breach of contract are: the
existence of a contract, performance by the party seeking recovery, non-performance
by the other party, and damages attributable to the breach).
Although Defendant's default constitutes a concession of Plaintiff's allegations, it
does not serve as an admission of damages. See Volkswagen A.G., 2009 WL
1045995, at *1. Plaintiff has the burden to establish damages in an evidentiary
proceeding. See id. However, if the damages are susceptible to mathematical
computation, or the amount is liquidated, the court need not conduct an evidentiary
proceeding because there is a basis for calculating the damages. See id. Here, no
evidentiary proceeding is necessary. The materials submitted with the Complaint,
together with the affidavits in support of the Motion for Default Judgment, are sufficient
to establish damages on the promissory note because the principal owed on the note
and the interest are susceptible to mathematical computation. See Dkt. ## 1, 8.
Plaintiff seeks $25.00 pursuant to Fed. R. Civ. P. 55(b) for travel and service
fees under 28 U.S.C. § 1921. Dkt. #8. Plaintiff presented no evidence it actually
incurred this fee, other than counsel's representation that the information contained in

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This amount is the sum of the current principal of $2,688.91 plus the current capitalized interest balance
and accrued interest of $4,196.95 owed as of February 10, 2012. See Dkt. #1, Ex. A.

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the motion is true. See United States v. Anthony, 2010 WL 681359, at *2 (N.D.N.Y.
Feb. 24, 2010). Accordingly, the Court will not award costs at this time. Plaintiff may
file another Bill of Costs after judgment is entered.
Lastly, Fed. R. Civ. P. 54(c) states that a default judgment must not differ in kind
from, or exceed in amount, what is demanded in the pleadings. Plaintiff requests the
same monetary sum, composed of loan principal plus respective interest, both in its
Complaint and Default Judgment Motion. Dkt. ## 1, 8. Thus, the award requested
complies with Fed. R. Civ. P. 54(c).
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff's motion for Default
Judgment. Accordingly, the Court Clerk is directed to enter judgment in Plaintiff's favor
for $10,762.51, which includes total interest accrued through July 11, 2012, and any
accrued interest to date.

IT IS SO ORDERED.
Dated: February 25, 2013

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