Bray v. Purple Eagle Entertainment, Inc. et al

Filing 143

ORDER. Plaintiff's application for a default judgment is DENIED WITHOUT PREJUDICE. Plaintiff's barebones submission which is entirely lacking evidentiary support or a memorandum of law does not include sufficient evidence for the Court&# 039;s review, see Transatlantic Marine, 109 F.3d at 111, and the Court declines Plaintiff's invitation to effectively bifurcate the default judgment procedure and initiate discovery after the Clerk's entry of default.Instead, to the extent Plaintiff seeks the Court's assistance with sending subpoenas to third parties to ascertain its damages (the "Subpoenas"), Plaintiff may submit the Subpoenas for the Court's review and endorsement by Monday, September 27, 2021. Af ter Plaintiff receives the responsive documents, it may renew its application for a default judgment (the "Renewed Application"). By Monday, January 31, 2022, Plaintiff shall file a status report advising the Court of the progress in collecting evidentiary support and projected date for filing a renewed motion for default judgment. SO ORDERED. (Signed by Magistrate Judge Sarah L Cave on 9/13/21) (yv)

Case 1:18-cv-05205-GBD-SLC Document 143 Filed 09/13/21 Page 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAVID BRAY,
Plaintiff,
-v-

CIVIL ACTION NO.: 18 Civ. 5205 (GBD) (SLC)

PURPLE EAGLE ENTERTAINMENT, INC., et al.,

ORDER

Defendants.
SARAH L. CAVE, United States Magistrate Judge.
On July 6, 2021, the Court ordered Plaintiff to request a Certificate of Default from the
Clerk of Court by July 13, 2021 and file a Motion for Default Judgment in accordance with the
Individual Practices of the Honorable George B. Daniels, Rule 55 of the Federal Rules of Civil
Procedure and S.D.N.Y. Local Rule 55 by July 27, 2021. (ECF No. 139 (the “Default Order” ()).
Following the Default Order, Plaintiff filed a Proposed Clerk’s Certificate of Default (ECF
No. 141) and an Affirmation of counsel (these documents together, the “Default Application”)
(ECF No. 142). Plaintiff did not file a memorandum of law, affidavit from the Plaintiff, or exhibits
providing documentary support for the Default Application. In relevant part, the Affirmation
states that “[t]his action seeks judgment declaring Plaintiff owns the copyrights” to twenty listed
compositions, and proposes that because
the full monetary value of the damages cannot be ascertained based on the
documents that have been disclosed thusfar, Plaintiff intends to submit draft
subpoenas for the Court to issue to various music distribution channels to obtain
the accounting sought in the complaint. Once those documents are obtained,
then an appropriate brief can be submitted to obtain a money judgment from the
Court.
(ECF No. 142 ¶¶ 7–8).
A default judgment entered on well-pleaded allegations in a complaint establishes a
defendant’s liability. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158
(2d Cir. 1992). A defendant’s default is deemed “a concession of all well-pleaded allegations of

Case 1:18-cv-05205-GBD-SLC Document 143 Filed 09/13/21 Page 2 of 4
liability,” but it is not deemed an admission of damages. Rovio Ent., Ltd. v. Allstar Vending, Inc.,
97 F. Supp. 3d 536, 545 (S.D.N.Y. 2015). Although the default equates to a concession of the truth
of the allegations as to liability, a court must still examine the pleadings to determine whether a
plaintiff’s allegations are prima facie sufficient to demonstrate liability for the cause of action as
to which they are seeking a default judgment. See Taizhou Zhongneng Imp. & Exp. Co. v.
Koutsobinas, 509 F. App’x 54, 56 (2d Cir. 2013) (liability of defaulting defendant depends on
whether “allegations are sufficient to state a cause of action”); Lenard v. Design Studio, 889 F.
Supp. 2d 518, 528 (S.D.N.Y. 2012) (“Without a response from Defendants, this Court must first
determine whether the allegations in Plaintiff’s Complaint are sufficiently pleaded to establish
Defendants’ liability.”); Bleecker v. Zetian Sys., Inc., No. 12 Civ. 2151 (DLC), 2013 WL 5951162, at
*4–5 (S.D.N.Y. Nov. 1, 2013) (evaluating whether plaintiff had adequately pled federal jurisdiction
and elements of breach of contract claim).
Once liability has been established, the court must “conduct an inquiry in order to
ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No.
15 Civ. 5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016) (quoting Credit Lyonnais
Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)), adopted by 2016 WL 4532201
(S.D.N.Y. Aug. 29, 2016). The plaintiff “bears the burden of establishing [its] entitlement to
recovery and thus must substantiate [its] claim with evidence to prove the extent of damages.”
Dunn v. Advanced Credit Recovery Inc., No. 11 Civ. 4023 (PAE) (JLC), 2012 WL 676350, at *2
(S.D.N.Y. Mar. 1, 2012). The plaintiff must demonstrate that the compensation it seeks “relate[s]
to the damages that naturally flow from the injuries pleaded.” Am. Jewish Comm., 2016 WL
3365313, at *3 (quoting Greyhound, 973 F.2d at 159). Where the damages are “not susceptible
to simple mathematical calculation, Federal Rule of Civil Procedure 55(b)(2) gives courts
discretion to determine whether an evidentiary hearing is necessary or whether to rely on
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Case 1:18-cv-05205-GBD-SLC Document 143 Filed 09/13/21 Page 3 of 4
detailed affidavits or documentary evidence.” Id. at *4 (internal citation omitted). If the
documents the plaintiff has submitted provide a “sufficient basis from which to evaluate the
fairness of” the requested damages, the court need not conduct an evidentiary hearing. Fustok
v. ContiCommodity Servs. Inc., 873 F.2d 38, 40 (2d Cir. 1989); see Transatlantic Marine Claims
Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997) (court
may determine appropriate damages based on affidavits and documentary evidence “as long as
[the court has] ensured that there [is] a basis for the damages specified in the default judgment”)
(internal citation omitted).
Plaintiff’s application for a default judgment is DENIED WITHOUT PREJUDICE. Plaintiff’s
barebones submission — which is entirely lacking evidentiary support or a memorandum of law
— does not include sufficient evidence for the Court’s review, see Transatlantic Marine, 109 F.3d
at 111, and the Court declines Plaintiff’s invitation to effectively bifurcate the default judgment
procedure and initiate discovery after the Clerk’s entry of default.
Instead, to the extent Plaintiff seeks the Court’s assistance with sending subpoenas to
third parties to ascertain its damages (the “Subpoenas”), Plaintiff may submit the Subpoenas for
the Court’s review and endorsement by Monday, September 27, 2021.
After Plaintiff receives the responsive documents, it may renew its application for a
default judgment (the “Renewed Application”). By Monday, January 31, 2022, Plaintiff shall file
a status report advising the Court of the progress in collecting evidentiary support and projected
date for filing a renewed motion for default judgment.
Dated:

New York, New York
September 13, 2021
SO ORDERED.

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Case 1:18-cv-05205-GBD-SLC Document 143 Filed 09/13/21 Page 4 of 4
_________________________
SARAH L. CAVE
United States Magistrate Judge

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