The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
The plaintiff, STS Cargo Services Company, Ltd. ("STS" or
"plaintiff"), brought this action for breach of contract and
account stated against Fortune Fabrics International, Ltd.
("Fortune" or "defendant"). Upon the defendant's failure to: (i)
appear for deposition; or (ii) serve a written response to the
plaintiff's request for inspection, the Clerk of Court was
directed to enter a default against Fortune, pursuant to
Fed.R.Civ. P. 37(d) and Fed.R. Civ. P. 37(b)(2)(C).
Thereafter, the Court directed STS to serve and file proposed
findings of fact and conclusions of law, and an inquest
memorandum setting forth its proof of damages, costs of this
action, and attorneys fees. The defendant was directed to file
and serve any opposing memoranda, affidavits and exhibits, as
well as any alternative findings of fact and conclusions of law
it deemed appropriate. In support of its request for damages, STS submitted the
declaration of Kenneth Lin ("Lin Declaration"), the president of
STS. Attached to the Lin Declaration were, inter alia, copies
of: 1) a purchase order documenting the defendant's purchase of
fabric from Jiangyin Hongxing Group Import/Export Company, Ltd.
("Jiangyin") in China; 2) an undated e-mail sent by Ravi
Malhotra, an employee of Fortune, to Wu Yan, an employee of
Jiangyin, acknowledging that Fortune was aware of unpaid air
freight charges of $128,658.55; and 3) seven invoices, which,
according to the Lin Declaration, were all sent to the defendant,
in the amounts of: $7,184.60; $37,863.00; $14,185.00; $40,871.00;
$10,049.10; $14,264.25; and $4,346.60 ("invoices").
The plaintiff's submissions aver that it is entitled to damages
of $128,763.45, as well as interest from June 4, 2002, attorney
fees, and costs. Fortune has made no submission in opposition to
the plaintiff's application for damages.
For the reasons set forth below, STS is awarded damages in the
amount of $128,763.55, with prejudgment interest to be computed
in the manner described below. The plaintiff's application for
attorney fees and costs is denied.
Based on the submissions by the plaintiff the factual
allegations of which, perforce of the defendant's default, must
be accepted as true, except as they relate to damages, see
Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158
(2d Cir. 1992) and this Court's review of the entire court file
in this action, the following findings of fact are made:
STS is a corporation organized and existing under the laws of
China, with an office and place of business in Shanghai, China.
STS is engaged in the business of international freight forwarding. Fortune is a New York corporation with a place of
business located within this judicial district. Fortune is
engaged in the business of importing, exporting and trading
In May and June of 2002, Fortune retained STS to arrange for
the air transportation, from China to El Salvador and Guatemala,
of seven shipments of fabric that the defendant had purchased
from Jiangyin. Thereafter, STS invoiced the defendant for each of
the seven shipments. The aggregate air freight and other charges
reflected on the invoices is $128,763.55.*fn1 According to
the complaint, Fortune has not paid any of these charges.
STS filed this action on September 16, 2003, seeking to recover
the unpaid freight and other charges, as well as prejudgment
interest, attorney fees, and the costs it incurred in bringing
As noted above, upon the entry of a defendant's default in an
action, that defendant is deemed to have admitted all factual
allegations in the complaint, except as they relate to damages.
See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d
Cir. 1981). However, a court has discretion to determine whether
the facts alleged in a complaint state a legally sufficient cause
of action. See, e.g., In re Crazy Eddie Sec. Litig.,
948 F. Supp. 1154, 1160 (E.D.N.Y. 1996). Additionally, the amount of
damages must be established by the plaintiff in a post-default
inquest, "unless the amount is liquidated or susceptible of
mathematical computation." Flaks v. Koegel, 504 F.2d 702, 707
(2d Cir. 1974). In conducting an inquest, a court need not hold a
hearing "as long as it [has] ensured that there was a basis for
the damages specified in the default judgment." Transatlantic Marine Claims Agency, Inc. ...