Rosario v. Los Castillos Mini Market, Corp. et al

Filing 27

ORDER: Accordingly, it is hereby ORDERED that: 1. Plaintiff shall serve defendants and file Proposed Findings of Fact and Conclusions of Law concerning all damages and any other monetary relief permitted under the entry of default judgment no later than Monday, December 11, 2023. Plaintiff shall include with such service a copy of this Order. The submission shall contain a concluding paragraph that succinctly summarizes what damage amount (or other monetary relief) is being sought, including th e exact dollar amount. Please note that Plaintiff may instead rely on his prior submissions in support of his motion for a default judgment in lieu of submitting Proposed Findings of Fact and Conclusions of Law but must advise the Court that he is d oing so by December 11, 2023, as further set forth herein. 3. The Court hereby notifies the parties that it may conduct this inquest based solely upon the written submissions of the parties. See Bricklayers & Allied Craftworkers Local 2, Albany, N.Y . Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (quoting Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991)); Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & T raining Fund & Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citation omitted). To the extent that any party seeks an evidentiary hearing on the issue of damages, such party must set forth in its submission the reas on why the inquest should not be conducted based upon the written submissions alone, including a description of what witnesses would be called to testify at a hearing and the nature of the evidence that would be submitted. 4. A courtesy copy of any document filed with the Court shall be sent or delivered to the undersigned. (Signed by Magistrate Judge James L. Cott on 11/14/2023) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CARLOS ROSARIO,
:
:
Plaintiff,
:
:
-v.:
:
LOS CASTILLOS MINI MARKET, CORP., :
et ano.,
:
:
Defendants.
:
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11/14/2023

SCHEDULING ORDER
FOR DAMAGES INQUEST
23-CV-2240 (MKV) (JLC)

JAMES L. COTT, United States Magistrate Judge.
On November 9, 2023, Judge Vyskocil granted a default judgment against
defendants (Dkt. No. 25) and referred this case to me to conduct an inquest into
damages (Dkt. No. 26).
“[E]ven when the defendant defaults and is not present to object, damages
must be based on admissible evidence.” Am. Jewish Comm. v. Berman, No. 15-CV5983 (LAK) (JLC), 2016 WL 3365313, at *4 (S.D.N.Y. June 15, 2016) (quoting House
v. Kent Worldwide Mach. Works, Inc., 359 F. App’x 206, 207 (2d Cir. 2010))
(citations omitted), adopted by 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016). In the
context of a default, allegations in a pleading pertaining to damages are not deemed
admitted. Nat’l Photo Grp., LLC v. Bigstar Entm’t, Inc., No. 13-CV-5467 (VSB)
(JLC), 2014 WL 1396543, at *2 (S.D.N.Y. Apr. 11, 2014) (citing Finkel v.
Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)), adopted by 2014 WL 5051275
(S.D.N.Y. Oct. 8, 2014). Rather, “a plaintiff must submit sufficient evidence, in the
form of detailed affidavits and other documentary materials to enable the district

court to ‘establish damages with reasonable certainty.’” Id. (quoting Transatlantic
Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997))
(internal citations omitted); see also Fed. R. Civ. P. 55(b)(2).
Accordingly, it is hereby ORDERED that:
1. Plaintiff shall serve defendants and file Proposed Findings of Fact and
Conclusions of Law concerning all damages and any other monetary relief
permitted under the entry of default judgment no later than Monday, December
11, 2023. Plaintiff shall include with such service a copy of this Order. The
submission shall contain a concluding paragraph that succinctly summarizes what
damage amount (or other monetary relief) is being sought, including the exact
dollar amount. Please note that Plaintiff may instead rely on his prior
submissions in support of his motion for a default judgment in lieu of
submitting Proposed Findings of Fact and Conclusions of Law but must
advise the Court that he is doing so by December 11, 2023.
2. Plaintiff’s Proposed Findings of Fact should specifically tie the proposed
damages figures to the legal claims on which liability has been established; should
demonstrate how plaintiff has arrived at the proposed damages figures; and should
be supported by one or more affidavits, which may attach any documentary
evidence establishing the proposed damages. Each Proposed Finding of Fact shall
be followed by a citation to the paragraphs of the affidavits and or page of
documentary evidence that supports each such Proposed Finding. To the extent the

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Proposed Findings contain any allegations regarding liability, the Proposed
Findings should cite to the appropriate paragraph of the complaint.
Any request for attorneys’ fees must be supported by contemporaneous time
records showing, for each attorney, the date of service, the hours expended, and the
nature of the work performed. Counsel should file an affidavit providing the
number of years each attorney has been admitted to the bar and their hourly rate.
Counsel should also include charts related to any fees that they are seeking, in
terms of hours and number of attorneys, if appropriate. The Conclusions of Law
shall include a paragraph or paragraphs setting forth the legal basis for any
requested award of attorney’s fees, including why, if applicable, the number of
attorneys involved are entitled to fees. Finally, counsel should provide
documentary evidence justifying an award of costs.
In lieu of conclusions of law, plaintiff may submit a memorandum of law
setting forth the legal principles applicable to plaintiff’s claim or claims for damages
(including but not limited to the legal basis for any claim for interest or attorneys’
fees). Plaintiff’s papers must include an affidavit from someone with personal
knowledge, setting forth the facts which establish liability, the proposed damages
amount, and facts which establish that the Court has both personal jurisdiction
over the defendants, and jurisdiction over the subject matter.
Defendants shall send to plaintiff’s counsel and file with the Court their
response, if any, to plaintiff’s submissions no later than January 3, 2024.

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3. The Court hereby notifies the parties that it may conduct this inquest
based solely upon the written submissions of the parties. See Bricklayers & Allied
Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const.,
LLC, 779 F.3d 182, 189 (2d Cir. 2015) (quoting Action S.A. v. Marc Rich & Co., 951
F.2d 504, 508 (2d Cir. 1991)); Cement & Concrete Workers Dist. Council Welfare
Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v.
Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citation omitted).
To the extent that any party seeks an evidentiary hearing on the issue of damages,
such party must set forth in its submission the reason why the inquest should not
be conducted based upon the written submissions alone, including a description of
what witnesses would be called to testify at a hearing and the nature of the
evidence that would be submitted.
4. A courtesy copy of any document filed with the Court shall be sent or
delivered to the undersigned.
Dated: November 14, 2023
New York, New York

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