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DYNAMIC CASSETTE INT'L LTD. v. MIKE LOPEZ & ASSOCS

March 21, 1996

DYNAMIC CASSETTE INTERNATIONAL LIMITED, Plaintiff, against MIKE LOPEZ AND ASSOCIATES, INC., Defendant.


The opinion of the court was delivered by: GOLD

REPORT AND RECOMMENDATION

 GOLD, S., U.S.M.J.:

 INTRODUCTION

 Plaintiff Dynamic Cassette International Limited ("Dynamic") brings this action pursuant to Article 53 of the New York Civil Practice Law and Rules ("CPLR") seeking to enforce a foreign judgment. The judgment in issue was entered in a lawsuit brought by Dynamic in England, in which Dynamic asserted that defendant Mike Lopez and Associates, Inc. ("Lopez") breached a contract for the sale of goods. Lopez failed to appear and, on December 17, 1993, the High Court of Justice, Queen's Bench Division, of England entered a default judgment against Lopez.

 Dynamic, invoking the diversity jurisdiction of this Court pursuant to 28 U.S.C. § 1332(a)(2), now seeks enforcement of the English judgment in United States District Court. The Honorable Eugene H. Nickerson entered a default judgment in favor of Dynamic on April 4, 1995, and referred this case to me to report and recommend on the amount of damages to be awarded to plaintiff.

 Plaintiff has submitted the affidavit of David W. Dykhouse dated March 31, 1995 ("Dykhouse Aff.") setting forth its position with respect to damages. By order dated April 21, 1995, I directed defendant to submit its position on damages no later than May 12, 1995. Defendant has not, however, submitted papers in opposition to plaintiff's damages request. For the reasons set forth below, I respectfully recommend that Dynamic be awarded damages in the amount of $ 278,313.95, as well as $ 175.00 in costs and disbursements.

 BACKGROUND

 Plaintiff Dynamic, a limited company organized and existing under the laws of the United Kingdom, is in the business of manufacturing cassettes and other storage media. Complaint P 2. Defendant Lopez, a Texas Corporation engaged in the import-export business, has its principal place of business in Dallas, Texas, as well as a place of business in Queens, New York. Complaint P 3.

 Defendant Lopez entered into a contract with plaintiff Dynamic for the supply of goods which provided that "the contract of sale whether verbal or written shall be governed by English Law in the jurisdiction of the High Court of Justice in England." Complaint PP 6-7, 11. In accordance with the terms of the contract, plaintiff delivered ordered goods to defendant Lopez and submitted invoices to defendant for payment. Plaintiff claims that defendant failed to pay nine of these invoices. Complaint P 8.

 Plaintiff, having received no payment from defendant Lopez on the nine overdue invoices, brought an action against defendant in the High Court of Justice, Queen's Bench Division, of England (the "English court"). Complaint P 9. On December 17, 1993, the English Court issued a final default judgment against defendant Lopez and in favor of plaintiff in the amount of $: 156,935.79, together with $: 248.00 in costs and interest at the rate of 8% per annum from December 17, 1993 (the "English judgment"). Complaint P 13. To date, no part of this judgment has been satisfied by defendant, Complaint P 17.

 DISCUSSION

 Once a default is entered, a defendant is deemed to have admitted all of the well-pleaded allegations in the complaint pertaining to liability. Claims for damages, however, must generally be established in an evidentiary proceeding at which the defendant is afforded the opportunity to contest the amount claimed. Greyhound Exhibitgroup, Inc., v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.), cert. denied 506 U.S. 1080, 113 S. Ct. 1049, 122 L. Ed. 2d 357 (1993); Montcalm Pub Corp. v. Ryan, 807 F. Supp. 975, 977 (S.D.N.Y. 1992) (citing United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1984); Au Bon Pain Corp. v. Artect, 653 F.2d 61, 65 (2d Cir. 1981); Deshmukh v. Cook, 630 F. Supp. 956, 959 (S.D.N.Y. 1986); 6 Moore's Federal Practice P 55.03[2] at 55-16 (2d ed. 1988)). Although defendant Lopez was afforded the opportunity to contest plaintiff's application for damages in this action, it has chosen not to do so.

 A. Enforcement of the Foreign Judgment

 Plaintiff Dynamic brings this action seeking to have this Court enter judgment against Lopez in the amount of $: 173,350.33, the value of the English judgment ( $: 156,935.79, together with $: 248.00 in costs and $: 16,166.54 in interest accruing at the rate of 8% per annum from the period December 17, 1993 to March 31, 1995), plus $ 175.00 for costs and disbursements incurred in this action. ...


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