Hay v. PBR Sales, LLC et al

Filing 30

ORDER: Accordingly, within 45 days of the date of this Order, Plaintiff is directed to seek a default judgment pursuant to Federal Rule of Civil Procedure 55 1 and Local Civil Rules 55.1 and 55.2. If Plaintiff fails to seek a default judgment, the Action may be dismissed for failure toprosecute pursuant to Federal Rule of Civil Procedure 41(b).3The Clerk of Court is directed to mail a copy of this Order to Defendants at the belowaddresses, as listed on the summons. (Dkt. Nos. 16-17.)(And as further set forth in this Order.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 12/18/2019) (jca) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRJCT COURT
SOUTHERN DISTRJCT OF NEW YORK

MONTE TING HAY,
Plaintiff,
No. 18-CV-5736 (KMK)
V.

ORDER
PBR SALES, LLC, et al.,
Defendants.

KENNETH M. KARAS, United States District Judge:
Monte Ting Hay ("Plaintiff') brings this Action against Defendants and Counter
Claimants PBR Sales, LLC and Pratap Sapra (collectively, "Defendants"), alleging that
Defendants defaulted on two promissory notes.
On September 6, 2019, Gary M. Fellner, Esq. filed a Motion To Withdraw as Attorney
for Defendants, (Dkt. Nos. 25-26), and the Court gave Defendants 30 days to find replacement
counsel, instructing Defendants that corporate parties must be represented by an attorney, (Dkt.
No. 28). By October 6, 2019, no new attorney had filed a notice of appearance on behalf of
Defendants on the docket, and Defendants had not indicated to the Court that they intend to
obtain replacement counsel. Thus, on November 5, 2019, the Court issued an Order directing
Defendants to show cause, within 30 days, as to why the Court should not issue a default
judgment against them. (Dkt. No. 29.) Defendants did not respond to the Order and have not
otherwise communicated with the Court.

Accordingly, within 45 days of the date of this Order, Plaintiff is directed to seek a
default judgment pursuant to Federal Rule of Civil Procedure 55 1 and Local Civil Rules 55.1 and
55.2. 2

1

Federal Rule of Civil Procedure 55 provides, relevant here:

(a) Entering a Default. When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party' s default.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that
can be made certain by computation, the clerk - on the plaintiff's
request, with an affidavit showing the amount due - must enter
judgment for that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor an
incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a
default judgment. A default judgment may be entered against a minor
or incompetent person only if represented by a general guardian,
conservator, or other like fiduciary who has appeared. If the party
against whom a default judgment is sought has appeared personally or
by a representative, that party or its representative must be served with
written notice of the application at least 7 days before the hearing. The
court may conduct hearings or make referrals - preserving any federal
statutory right to a jury trial - when, to enter or effectuate judgment, it
needs to :
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
2

Local Civil Rule 55.1 provides that " [a] party applying for entry of default under Fed.
R. Civ. P. 55(a) shall file: (a) a request for a Clerk's Certificate of Default; and (b) an affidavit
demonstrating that: (1) the party against whom a notation of default is sought is not an infant, in
the military, or an incompetent person; (2) the party has failed to plead or otherwise defend the
action; and (3) the pleading to which no response has been made was properly served." It further
provides that " [a] proposed Clerk' s Certificate of Default form must be attached to the affidavit."
Id
Local Civil Rule 55.2 provides:
(a) By the Clerk. Upon issuance of a Clerk' s certificate of default, if the claim to
which no response has been made only sought payment of a sum certain, and

doe~ not includ~a r@qu@~t for rrnomey'gfeeg or other ~u~~tMtiw t~lief, and if
2

If Plaintiff fails to seek a default judgment, the Action may be dismissed for failure to

prosecute pursuant to Federal Rule of Civil Procedure 41(b).3
The Clerk of Court is directed to mail a copy of this Order to Defendants at the below
addresses, as listed on the summons. (Dkt. Nos. 16-17.)
PBR Sales, LLC
2 Westchester Park Drive
White Plains, New York 10604
Pratap Sapra
22 Stony Hollow Road
Chappaqua, New York 10514
SO ORDERED.
DATED:

December /_Z_, 2019
White Plains, New York

a default judgment is sought against all remaining parties to the action, the
moving party shall submit an affidavit showing the principal amount due and
owing, not exceeding the amount sought in the claim to which no response has
been made, plus interest, if any, computed by the party, with credit for all
payments received to date clearly set forth, and costs, if any, pursuant to 28
u.s.c. § 1920.
(b) By the Court. In all other cases the party seeking a judgment by default shall
apply to the Court as described in Fed. R. Civ. P. 55(b)(2), and shall append to
the application (1) the Clerk's certificate of default, (2) a copy of the claim to
which no response has been made, and (3) a proposed form of default judgment.
(c) Mailing of Papers. Unless otherwise ordered by the Court, all papers submitted
to the Court pursuant to Local Civil Rule 55.2(a) or (b) above shall
simultaneously be mailed to the party against whom a default judgment is
sought at the last known residence of such party (if an individual) or the last
known business address of such party (if a person other than an individual).
Proof of such mailing shall be filed with the Court. If the mailing is returned,
a supplemental affidavit shall be filed with the Court setting forth that fact,
together with the reason provided for return, if any.
3

Rule 41 (b) provides that a case may be involuntarily dismissed if a plaintiff "fails to

proseoute or to comply with th~se rules or ll court order." Fed. R. Civ. P. 4l(b).
3