United States District Court, S.D. New York
July 21, 2004.
QWEST COMMUNICATIONS CORPORATION, Plaintiff,
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
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.)
"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.
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).