United States District Court, S.D. New York
October 20, 2004.
VICTOR P. MUSKIN, P.C., Plaintiff,
RAYMOND E.B. KETCHUM and CEA FINANCIAL GROUP, INC., Defendants.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM AND ORDER
The plaintiff, Victor P. Muskin, P.C. ("Muskin"), brought this
action for, inter alia, breach of contract and account stated
against Raymond E.B. Ketchum ("Ketchum") and CEA Financial Group,
Inc. ("CEA"), alleging that the defendants failed to pay fees for
legal services rendered by the plaintiff to Ketchum. Thereafter,
Muskin and Ketchum consented to have this action assigned to the
undersigned United States magistrate judge for all proceedings,
including the entry of judgment, pursuant to 28 U.S.C. § 636(c).
Upon the defendants' failure to answer or otherwise respond to
the complaint, Muskin made an application that a default judgment
be entered against the defendants, in the amount of $77,170.00,
plus prejudgment interest.
Fed.R. Civ. P. 55 governs the entry of defaults and default
judgments. It provides, in pertinent part:
When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise
defend as provided by these rules and that fact is made to appear by
affidavit or otherwise, the clerk shall enter the
* * *
(1) By the Clerk.
When the plaintiff's claim against a defendant is for
a sum certain or for a sum which can by computation
be made certain, the clerk upon request of the
plaintiff and upon affidavit of the amount due shall
enter judgment for that amount and costs against the
defendant, if the defendant has been defaulted for
failure to appear and is not an infant or incompetent
(2) By the Court.
In all other cases the party entitled to a judgment
by default shall apply to the court therefor. . . .
If, in order to enable the court to enter judgment or
to carry it into effect, it is necessary to take an
account or to determine the amount of damages or to
establish the truth of any averment by evidence or to
make an investigation of any other matter, the court
may conduct such hearings . . . as it deems necessary
and proper. . . .
Fed.R. Civ. P. 55(a),(b).
Accordingly, upon the entry of a party's default in an action,
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 this action, Muskin seeks damages against Ketchum in the
amount of $77,170.00, representing unpaid fees for legal
services, plus prejudgment interest at the rate prescribed by New
York law, nine per centum per annum. See New York Civil
Practice Law and Rules § 5004. Since the amount of damages sought
by Muskin is a sum which can, by mathematical computation, be
made certain, there is no need for Muskin to prove the amount of
damages at an inquest proceeding. Exhibit A to the declaration
that Muskin submitted in support of his default judgment application contains a computation of interest on the
unpaid fees that Ketchum owed to him during various periods of
time between July 1, 2002 and July 31, 2004. The Court finds the
computation to be accurate and adopts it. Therefore, Muskin is
entitled to interest of $11,747.43 through July 31, 2004. Muskin
is also entitled to prejudgment interest in the amount of
$1,541.29, for the period beginning August 1, 2004, and ending on
the date of this order, October 20, 2004. Accordingly, Muskin is
entitled to a default judgment against Ketchum in the amount of
$77,170.00 in damages, and a total of $13,288.72 in prejudgment
Muskin has also made an application that the automatic stay of
enforcement of the judgment, imposed by Fed.R. Civ. P. 62(a), be
waived, so that he might record the judgment immediately.
Fed.R.Civ. P. 62(a) provides, in pertinent part, that "no execution
shall issue upon a judgment nor shall proceedings be taken for
its enforcement until the expiration of 10 days after its entry."
The recording of a judgment, however, "does not constitute a
proceeding to enforce a judgment and therefore is not prohibited
by [Fed.R. Civ. P. 62(a)]." See In re: Rainbow Trust,
216 B.R. 77, 86 (2d Cir. 1997). Accordingly, the plaintiff's
application to waive the automatic stay is unnecessary and need
not be entertained by the Court.
Since CEA did not consent to have this action assigned to the
undersigned, pursuant to 28 U.S.C. § 636(c), jurisdiction to
determine Muskin's application with respect to CEA remains with
the district judge who was assigned to this action or, if
appropriate, with the Clerk of Court, pursuant to Fed.R. Civ. P.
55(b)(1). Therefore, the Court takes no action on that part of
the plaintiff's application that was directed at CEA.
For the reasons set forth above, Muskin's application for
damages and prejudgment interest is granted with respect to
Ketchum, and the Court takes no action with respect to the plaintiff's application for damages and prejudgment interest
The Clerk of Court shall enter a judgment against Ketchum that
reflects an award of: (a) damages in the amount of $77,170.00;
and (b) prejudgment interest in the amount of $13,288.72.
The plaintiff is directed to serve a copy of this memorandum
and order on the defendants and to submit proof of service to the
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