The opinion of the court was delivered by: Andrew Peck, Magistrate Judge
REPORT AND RECOMMENDATION
By Order dated May 15, 2003, Judge Daniels granted plaintiff summary judgment against defendants and referred the matter to me for an "inquest on damages, interests, costs and disbursements as to plaintiff, as well as a report and recommendation on [plaintiff's] attorney Robert J. Poulson, Jr.'s motion for attorney's fees." (Dkt. No. 38: 5/16/03 Judgment; see also Dkt. No. 35: Judge Daniels' Summary Judgment Decision.)
For the reasons set forth below, the Court recommends that Judgment be entered for plaintiff Ronald Schruefer for damages of $409,000, interest of $100,205, attorney's fees of $74,550, and disbursements of $2,472, for a total of $586,227.
"Where, as here, `the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).*fn1
The complaint alleges that defendants defrauded plaintiff Schruefer, a resident of the State of Alaska, into investing $420,000 in securities/commodities/currency transactions in violation of the Alaska Securities Act. (E.g., Dkt. No. 1: Compl. ¶¶ 6, 38-50, 54-59.)
In his summary judgment affidavit, Mr. Schruefer states that he wire transferred $420,000 to defendants (Schruefer Aff. ¶ 28; see also id. ¶¶ 12, 19, 21-22), and was refunded $11,000 in May 1999, for a loss of $409,000. (See id. ¶ 42.)
By Opinion dated March 12, 2003, Judge Daniels granted plaintiff summary judgment on the Alaska Securities Act, conversion and breach of fiduciary duty causes of action in the complaint. (Dkt. No. 35: 3/12/03 Summary Judgment Decision.)
The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "`as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 1 11 (2d Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).*fn2
By Order dated June 5, 2003, I directed plaintiff's attorney, Mr. Poulson, to submit additional information as to attorney's fees and disbursements, and further ordered that "[d]efendants are to provide any response on this inquest as to amount of damages and/or attorneys fees, by June 17, 2003." (Dkt. No. 40: 6/5/03 Order.) Defendants have not responded to that Order, and the deadline has passed.
Mr. Schruefer's affidavit supports an award of ...