The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this breach-of-contract action filed by Walter F. Benson ("Plaintiff") is Plaintiff's motion for default judgment against Quicknowledge, Inc. ("Defendant"). (Dkt. No. 21.) For the reasons set forth below, Plaintiff's motion is granted.
Generally, liberally construed, Plaintiff's Complaint alleges that, on or about April 13, 2005, Defendant executed and delivered to Plaintiff a promissory note (the "Note") in which Defendant promised to, inter alia, pay Plaintiff the principal sum of one hundred thousand dollars ($100,000) with interest at eight percent (8%) per annum on April 13, 2006. (Dkt. No. 1, ¶ 5.) Plaintiff's Complaint further alleges that, as of the date of the Complaint (November 12, 2008), the sum in question was still "due and owing," with interest accruing daily. (Id. at ¶¶ 8-9.) Based on these factual allegations, Plaintiff's Complaint expressly asserts a claim for "negligence." (Id. at "Claim I.") The Court liberally construes this claim as one for breach of contract.*fn1
B. Plaintiff's Motion for Default Judgment
On January 25, 2010, Plaintiff served his Complaint upon Defendant through both personal service and registered mail. (Dkt. No. 18.) Defendant did not file an Answer. (See generally Docket Sheet.) On February 20, 2010, the Clerk entered default against Defendant pursuant to Fed. R. Civ. P. 55(a). (Dkt. No. 20.)
On March 3, 2010, Plaintiff filed the current motion for default judgment, and served that motion on Defendant. (Dkt. No. 21.) Defendant's response to the motion was due on April 19, 2010. (Docket Entry dated 03/03/2010.) As of the date of this Decision and Order, Defendant has filed no such response. (See generally Docket Sheet.)
Generally, in his motion, Plaintiff requests that the Court issue default judgment against Defendant, pursuant to Fed. R. Civ. P. 55(b), based on Defendant's failure to appear, answer, or otherwise move with respect to the pleadings. (See generally Dkt. No. 21.)
A. Entry of Default Judgment
"Rule 55(b) of the Federal Rules of Civil Procedure provides that when a party moves for judgment against an adverse party who has failed to answer or otherwise appear in the action, the court may enter judgment against the defaulting party." Coated Fabrics Co. v. Mirle Corp., 06-CV-5415, 2008 WL 163598, at *4 (E.D.N.Y. Jan. 16, 2008) (citing Fed. R. Civ. P. 55[b]). "That rule, in tandem with the Northern District of New York Local Rule 55.2, sets forth certain procedural prerequisites that must be met before a default judgment may be entered[.]" Pert 35, Inc. v. Amari Aviation Ltd., 09-CV-0448, 2010 WL 1257949, at *3 (N.D.N.Y. Mar. 5, 2010) (Peebles, M.J.). More specifically, in order to grant Plaintiff's motion for default judgment, Plaintiff must do the following: "[1) show that the defendant was properly served with a summons and complaint; [2) obtain the entry of default; and [3) provide an affidavit setting forth the salient facts including, if the defendant is a person, showing that he or she is not an infant or incompetent, or a member of the United States Military Service." Pert 35, Inc., 2010 WL 1257949, at *3 (citing, inter alia, Fed. R. Civ. P. 55[b], N.Y.N.D. L.R. 55.1 and N.Y.N.D. L.R. 55.2). "When a default judgment is entered, the defendant's failure to respond constitutes an admission of the well-pleaded factual allegations in the complaint, except as to claims relating to damages." Coated Fabrics Co., 2008 WL 163598, at *4 (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L Realty Corp., 973 F.2d 155, 158 [2d Cir. 1992]; Au Bon Pain Corp., v. Artect, Inc., 653 F.2d 61, 65 [2d Cir. 1981]). "Moreover, an inquest by affidavit, without an in-person hearing, may be conducted as long as the court can ensure 'a basis for the damages specified in the default judgment.'" Id. (quoting Transatlantic Marine Claims Agency Inc. v. Ace Shipping Corp., 109 F.2d 105, 111 [2d Cir. 1997] [citation omitted]).
Here, Plaintiff has moved for default judgment, and Defendant has failed to respond to the Complaint or to oppose Plaintiff's motion, despite receiving notice and an opportunity to respond. See, supra, Part I.B. of this Decision and Order. In addition, Plaintiff has (1) properly served Defendant with the Complaint, (2) obtained an entry of default against Defendant, and (3) provided an affidavit setting forth the aforementioned facts. Id. Based on Plaintiff's compliance with Fed. R. Civ. P. 55(b)(2) and N.D.N.Y. L.R. 55.1 and 55.2, and Defendant's apparent lack of interest in this proceeding, the Court ...