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QWEST COMMUNICATIONS CORPORATION v. N.Y. TELENETWORKS

United States District Court, S.D. New York


July 21, 2004.

QWEST COMMUNICATIONS CORPORATION, Plaintiff,
v.
N.Y. TELENETWORKS, INC., Defendant.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Richard M. Berman, United States District Judge:

On July 1, 2004, Judge Berman granted plaintiff Qwest Communications Corporation ("Qwest") a default judgment against defaulting defendant N.Y. Telenetworks, Inc. ("Telenetworks"), and referred the matter to me to "confirm, etc. amount of damages, interest, etc." (Dkt. No. 10: 7/1/04 Default Judgment.) Because of some confusion in plaintiff's papers, I ordered plaintiff to provide additional papers (which it did), and directed defendant Telenetworks to serve any opposing papers by July 16, 2004, which it has not done. (Dkt. No. 12: 7/14/04 Order.)

  FACTS

  "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 Amended Complaint sues for a fixed amount, $481,829.39, plus interest, for, inter alia, breach of contract and account stated. (Dkt. No. 1: Compl. ¶¶ 5-12.) ANALYSIS

  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, 111 (2d Cir. 1997) (quoting Fustok v. Conti Commodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).*fn2

  Qwest has supplied its contract with Telenetworks (McCoy 7/19/04 Aff. ¶ 4 & Ex. A) and Qwest's billing ledger for Telenetworks, which establishes the principal amount unpaid and due at $481,829.39 (McCoy 7/19/04 Aff. ¶ 5 & Ex. B). Thus, Qwest is entitled to judgment for the fixed amount sought in the complaint of $481,829.39.

  The Qwest-Telenetworks agreement calls for interest on the unpaid amount of one percent per month. (McCoy 7/19/04 Aff. Ex. A: Contract ¶ 6.1.) The number of months from December 31, 2001 until July 15, 2004 is 30.5 months. Qwest has calculated the interest, on a monthly compounded basis, as $177,377.80. (McCoy 7/19/04 Aff. ¶ 5 & Ex. C.) Qwest, however, has not provided a basis for employing compound as opposed to simple interest. The Court believes the latter to be appropriate. Accordingly, Qwest is entitled to judgment for contractual interest through July 15, 2004 of $146,957.96 (the principal amount of $481,829.39 times 30.5 months times.01). Qwest also seeks $236.50*fn3 in costs for the Clerk's fee and process service fees, which are appropriate.

  CONCLUSION

  Qwest should be awarded judgment for the principal amount of $481,829.39, plus interest of $146,957.96 through July 15, 2004, and costs of $236.50, for a total of $629,023.85.

  Qwest is to serve this Order on Telenetworks and file proof of service with the Clerk of Court.

  FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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