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Johannes Baumgartner Wirtschafts v. Stanley P. Salzman

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


March 17, 2011

JOHANNES BAUMGARTNER WIRTSCHAFTS UND VERMOGENSBERATUNG GMBH, AND HOLGER KNUT THEILER, PLAINTIFFS,
v.
STANLEY P. SALZMAN, ESQ., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND ORDER

Pending before the Court are Plaintiffs' motions for partial default judgments and expedited inquest against twelve separate Defendants (collectively, "Defaulting Defendants").*fn1

See Docket Nos. 145, 149, 157, 173, 184, and 189. As to each Defaulting Defendant, Plaintiffs seek: (i) judgment on their state law claims of fraud, conspiracy, and gross negligence; and (ii) relief in the form of liquidated damages, plus pre-judgment interest. On February 24, 2011, Magistrate Judge A. Kathleen Tomlinson issued three Reports and Recommendations ("R&Rs"), addressing those motions. See Docket Nos. 262, 263, 264.

Magistrate Judge Tomlinson recommended that partial default judgments be entered, except to the extent that one of the motions sought duplicative and/or moot relief. Additionally, Magistrate Judge Tomlinson recommended awarding specific damages. For the following reasons, Magistrate Judge Tomlinson's R&Rs are ADOPTED IN THEIR ENTIRETY. Consequently, Plaintiffs' partial default judgment motions filed as Docket Nos. 145, 149, 157, 173, 184 are GRANTED. Plaintiffs' motion for partial default judgment and an expedited inquest (Docket No. 189) is GRANTED IN PART AND DENIED AS MOOT IN PART.

DISCUSSION

I. The R&Rs Magistrate Judge Tomlinson recommended that: (i) the partial default judgment motions filed as Docket Nos. 145, 149, 157, 173, and 184 be granted; (ii) the partial default judgment and expedited inquest motion filed as Docket No. 189 be granted as to Defendants Carter Bailey Oppenheim & Dryfus, Inc., J.

Greenbaum, and John Ralston, but denied as moot as to the other Defaulting Defendants, because this motion seeks the same relief that Docket Nos. 149, 157, 173, and 184 do, or relief that the Court already granted in Docket No. 240. Judge Tomlinson further recommended that Plaintiffs receive the following damages, to be assessed jointly and severally against each Defaulting Defendant, except Ms. Slacum and ADCI*fn2

1. For Plaintiff Johannes Baumgartner Wirtschafts-Lind Vermogensberati-ING GMBH: (a) liquidated damages in the amount of $3,600,000; plus (b) statutory interest at a 9% annual rate, amounting to $951,582.24 through February 24, 2011, plus an additional $887.67 per day through the date of judgment.

2. For Plaintiff Holger Knut Theiler for: (a) liquidated damages in the amount of $200,000; plus (b) statutory interest at a 9% annual rate, amounting to $80,043.60*fn3 through February 24, 2001, plus an additional $49.32 per day through the date of judgment.

No party has filed any objections to Magistrate Judge Tomlinson's R&Rs. And the Court finds them to be correct, comprehensive, well-reasoned and free of clear error. Consequently, the Court adopts them in their entirety. See Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (if no timely objections have been made, the "court need only satisfy itself that there is no clear error on the face of the record") (internal quotations omitted).

The Court does, however, wish to clarify one minor ambiguity that has resulted from the separate default judgment motions, R&Rs, and the Court's earlier partial default judgment award against Ms. Slacum and ADCI. Namely, each Defaulting Defendant is jointly and severally liable with every other Defaulting Defendant--even if the various default judgment motions and R&Rs place them in smaller groupings. Thus, for instance, although the Order entered as Docket No. 240 addressed only Ms. Slacum and ADCI, these Defendants are now jointly and severally liable with every Defaulting Defendant, not just each other.

II. Current Interest Calculations

The R&Rs recommended awarding Plaintiff Johannes Baumgartner Wirtschafts-Lind Vermogensberati-ING GMBH prejudgment interest in the amount of $951,582.24 through February 24, 2011, plus an additional $887.67 per day through the date of judgment. Twenty-one days have passed since Magistrate Judge Tomlinson issued her R&Rs. Thus, this Plaintiff is entitled to an additional $18,641.07 in interest, for a total prejudgment interest award of $970,223.31.

The R&Rs recommended awarding Plaintiff Holger Knut Theiler prejudgment interest in the amount of $80,043.60 through February 24, 2001, plus an additional $49.32 per day through the date of judgment. Twenty-one days have passed since Magistrate Judge Tomlinson issued her R&Rs. Thus, Holger Knut Theiler is entitled to an additional $1,035.72 in interest, for a total prejudgment interest award of $81,079.32.

CONCLUSION

Magistrate Judge Tomlinson's R&Rs are ADOPTED IN THEIR ENTIRETY. See Docket Nos. 262, 263, 264. Plaintiffs' partial default judgment motions filed as Docket Nos. 145, 149, 157, 173, 184 are GRANTED. Plaintiffs' motion for partial default judgment and an expedited inquest (Docket No. 189) is GRANTED IN PART AND DENIED AS MOOT IN PART. As a consequence of this Order:

1. A partial default judgment is entered in Plaintiffs' favor, and against Defendants Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Huseyin Coban, Ali Karli, Moritz Johannas Wagner d/b/a C.B.O.D. Serviceburo Germany,*fn4 on the state law claims of fraud, conversion, unjust enrichment, conspiracy and gross negligence.

2. Defendants Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Huseyin Coban, Ali Karli, Moritz Johannas Wagner d/b/a C.B.O.D. Serviceburo Germany; Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, and John Ralston are jointly and severally liable:

a. To Plaintiff Johannes Baumgartner Wirtschafts-Lind Vermogensberati-ING GMBH for: (a) liquidated damages in the amount of $3,600,000; plus (b) prejudgment interest in the amount of $970,223.31;

b. To Plaintiff Holger Knut Theiler for: (a) liquidated damages in the amount of $200,000; plus (b) prejudgment interest in the amount of $81,079.32.

3. The Clerk of the Court is directed to issue a judgment in Plaintiffs' favor on those amounts, against those Defendants.

4. Additionally, the Clerk of the Court is directed to amend the judgment entered by Electronic Order on September 30, 2010 against Ms. Slacum and ADCI. The Amended Judgment should reflect that Ms. Slacum and ADCI are jointly and severally liable with Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Huseyin Coban, Ali Karli, Moritz Johannas Wagner d/b/a C.B.O.D. Serviceburo Germany; Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, John Ralston, and not just each other.

5. Any assets that Plaintiffs recover from any Defendant shall be deposited in the Court's registry pending this case's resolution or further order of the Court. Plaintiffs are directed to consult with Magistrate Judge Tomlinson concerning the proper procedure for depositing said assets.

6. The Court shall retain jurisdiction of this matter for all purposes.

7. Plaintiffs are ORDERED to serve a copy of this Order upon each Defaulting Defendant.

Central Islip, New York

SO ORDERED

Joanna Seybert, U.S.D.J.


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