Butler v. Rome Center, LLC
Filing
14
DECISION & ORDER that pltf's 10 Motion for Default Judgment is GRANTED AS TO LIABILITY on each of the claims asserted in the Amended Complaint as against deft Rome Center, LLC, d/b/a Center for Rehabilitation and Healthcare. The Court RESERVES decision on that portion of pltf's 10 Motion for Default Judgment that seeks damages. The Court directs the Clerk of the Court, in consultation with pltf's counsel, to schedule a hearing for the purpose of determining these damages. In a nticipation of this hearing, pltf's counsel is directed to file, 30 days in advance of the hearing, any competent evidence that may enable the Court to determine, with reasonable certainty, the amount due by deft for damages on some or all of th e claims. If the additional information is sufficient and unopposed, the Court may decide these amount of damages on the basis of the written submissions alone. If the evidence is opposed and/or insufficient, the Court will proceed with the hearing t o determine these damages. That portion of pltf's motion seeking costs and attys' fees is DENIED WITH LEAVE TO RENEW. Applications for costs and attys' fees can be made following the hearing in accordance with the normal protocol for t hese recoveries. Pltf is directed to serve a copy of this Decision & Order, and any further information in support of damages, upon deft Rome Center, LLC, d/b/a Center for Rehabilitation and Healthcare, or its counsel, in accordance with the Local Ru les of Practice as if deft had appeared in the action, and shall file proofs of such service with the Court. If deft intends to oppose pltf's written submissions supporting damages, such opposition must be filed 14 business days in advance of the hearing date. Signed by Senior Judge Thomas J. McAvoy on 10/8/2015. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
TAMIEKA BUTLER,
Plaintiff,
-against-
6:15-CV-394
ROME CENTER, LLC., d/b/a CENTER FOR
REHABILITATION and HEALTHCARE,
Defendant.
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
Before the Court is Plaintiff’s motion for Default Judgment
pursuant to FED. R. CIV. P. 55, seeking a judgment against Defendant
ROME CENTER, LLC., d/b/a CENTER FOR REHABILITATION and HEALTHCARE on
all claims asserted in the Amended Complaint.
For the reasons that
follow, Plaintiff’s motion is granted as to liability, reserved as
to damages, and denied with leave to renew as to costs and
attorneys’ fees.
II.
DISCUSSION
The following facts are supported by the entries on the docket,
the allegations contained in the Complaint, the allegations
contained in the Amended Complaint, and the assertions made in
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Plaintiff’s counsel’s affirmation in support of the motion for
default judgment. These facts are deemed established for purposes of
this motion.
Plaintiff filed the Complaint in this matter on April 2, 2015.
See Docket # 1. The action, as initially commenced, sought redress
for violations of rights guaranteed to Plaintiff by the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. §2601 et seq., the Fair Labor
Standards Act of 1938 (“FLSA”), 29 U.S.C. §216, et seq., and the New
York State Labor Law (“NYLL”)§650 et seq., to recover compensation
owed, but never paid, to Plaintiff by the Defendant. Defendant was
duly served with the Summons and Complaint on April 24, 2015, as set
forth in the Affidavit of Service. See Docket #4.
Defendant did not
answer or otherwise respond with respect to the Complaint, and the
time for Defendant to do so was not extended.
On May 6, 2015, the New York State Division of Human Rights
issued a Determination after Investigation finding that probable
cause exists to believe that the Defendant engaged in or is engaging
in unlawful discrimination against the Plaintiff on the bases of
disability and her sex.
At the request of the Plaintiff, the SDHR
dismissed her complaint on the basis of administrative convenience
pursuant to New York State Executive Law §297(9) with an order dated
May 19, 2015, thereby granting Plaintiff the right to pursue her
Human Rights Law remedies in this Court. The EEOC issued the
Plaintiff a notice of right to sue concerning the allegations
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against the Defendant on June 3, 2015.
On June 16, 2015, Plaintiff filed an Amended Complaint to add
causes of action for discrimination under the Americans with
Disabilities Act of 1990, 42 U.S.C. §12102, et seq., (“ADA”), and
the New York State Executive Law, §290, et seq. (“Human Rights Law”)
against the Defendant. See Docket # 5. Defendant was duly served
with the Summons and Amended Complaint on June 24, 2015, as set
forth in the Affidavit of Service. See Docket # 7.
In accord with
Rule 12 of the Federal Rules of Civil Procedure, Defendant’s
response was due on or before July 15, 2015.
Defendant has failed
to plead, respond, appear, or otherwise defend, thus placing the
Defendant in default.
The Defendant’s default has been noted by the
Clerk of the Court. See Docket # 9.
Defendant is not a person whose failure to appear could be
excused by serving on active duty with any branch of the military of
the United States of America, and, as a corporate entity, is not an
infant or incompetent.
A party’s default is deemed a concession of all well-pleaded
allegations of liability. See Greyhound Exhibitgroup Inc. v.
E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert.
denied, 113 S. Ct. 1049 (1993).
Thus, Plaintiff is entitled to a
default judgment as to liability on each of the claims asserted in
the Amended Complaint.
However, a party’s default is not an admission of damages. See
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Id. “[D]amages, which are neither susceptible of mathematical
computation nor liquidated as of the default, usually must be
established by the Plaintiff in an evidentiary proceeding in which
the Defendant has the opportunity to contest the amount.” Id.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for a default
judgment [doc. #10] is GRANTED AS TO LIABILITY on each of the claims
asserted in the Amended Complaint as against Defendant ROME CENTER,
LLC., d/b/a CENTER FOR REHABILITATION and HEALTHCARE.
The Court RESERVES decision on that portion of Plaintiff’s
motion for default judgment [doc. #10] that seeks damages. The Court
directs the Clerk of the Court, in consultation with Plaintiff’s
counsel, to schedule a hearing for the purpose of determining these
damages.
In anticipation of this hearing, Plaintiff’s counsel is
directed to file, thirty (30) days in advance of the hearing, any
competent evidence that may enable the Court to determine, with
reasonable certainty, the amount due by Defendant for damages on
some or all of the claims.
If the additional information is
sufficient and unopposed, the Court may decide these amount of
damages on the basis of the written submissions alone.
If the
evidence is opposed and/or insufficient, the Court will proceed with
the hearing to determine these damages.
That portion of Plaintiff’s motion seeking costs and attorneys’
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fees is DENIED WITH LEAVE TO RENEW.
Applications for costs and
attorneys’ fees can be made following the hearing in accordance with
the normal protocol for these recoveries.
Plaintiff is directed to serve a copy of this Decision & Order,
and any further information in support of damages, upon Defendant
ROME CENTER, LLC., d/b/a CENTER FOR REHABILITATION and HEALTHCARE,
or its counsel, in accordance with the Local Rules of Practice as if
Defendant had appeared in the action, and shall file proofs of such
service with the Court.
If Defendant intends to oppose Plaintiff’s
written submissions supporting damages, such opposition must be
filed fourteen (14) business days in advance of the hearing date.
IT IS SO ORDERED.
Dated:October 8, 2015
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