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Dushyant Kuruwa and Monica Arguelles v. Milton L. Meyers

October 24, 2011


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge



Plaintiffs Dushyant Kuruwa and Monica Arguelles -- who are now proceeding pro se though they were represented at the time suit was filed in May 2009 -- seek damages against attorney Milton Meyers based on Meyers' representation of Kuruwa for immigration purposes. See Complaint, filed May 7, 2009 (Docket # 1) ("Compl."). The case has proceeded through discovery and motions for summary judgment by each side.*fn1

On April 12, 2011, after the Court denied both parties' motions for summary judgment, see Order, filed Mar. 2, 2011 (Docket # 40), the Court ordered the parties to submit a proposed joint pretrial order by May 6, 2011. Order, filed Apr. 12, 2011 (Docket # 43). The Court directed Meyers to supply his portion of the pre-trial order materials to plaintiffs by April 22, 2011. See id. ¶ 2. At Meyers' request, this deadline was extended to April 27, 2011. Memorandum Order, filed Apr. 25, 2011 (Docket # 44). Meyers did not comply with thisdeadline but instead wrote a letter after the deadline seeking an extension sine die for medical reasons, which was granted. See Memorandum Order, filed May 6, 2011 (Docket # 47). By Order dated May 24, 2011, the Court gave Meyers an extension until June 15 to submit his pre-trial order materials to plaintiffs. See Order, filed May 25, 2011 (Docket # 48). The Court extended this deadline to June 22. See Order, filed June 15, 2011 (Docket # 49). Meyers failed to meet this deadline, however, and has never asked that it be extended.

When the June 22 deadline was not met, the Court issued an Order to Show Cause directing Meyers to show cause why he should not be sanctioned for his failure to supply his portion of the joint pre-trial order materials. See Order, filed June 29, 2011 (Docket # 50). Not only did Meyers fail to provide a reason to the Court as to why he should not be sanctioned, he failed to respond to the Order to Show Cause at all. Accordingly, the Court issued an order finding Meyers in default as a sanction pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi). See Order, filed July 14, 2011 (Docket # 51).*fn2

Thereafter, the parties were directed to submit affidavits regarding damages. Id.

Plaintiffs submitted an affidavit on August 5, 2011. See Affidavit in Support of Plaintiff's Claim for Damages, filed Aug. 5, 2011 (Docket # 52) ("Pl. Aff."). Meyers submitted an affidavit in opposition, see Defendant's Affidavit in Opposition to Plaintiff's Claim for Damages, filed Aug. 26, 2011 (Docket # 53) ("Def. Aff."), and plaintiffs submitted a reply affidavit, see Reply to Defendant's Opposition to Plaintiff's Affidavit in Support of Claim for Damages, filed Sept. 9, 2011 (Docket # 55) ("Pl. Reply").

In light of the default imposed under Rule 37, we follow the procedure for entry of a default judgment as set forth in Fed. R. Civ. P. 55. Under the case law interpreting that rule, the default establishes Meyers' liability, see, e.g., Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir. 1995), as long as the complaint has stated a valid cause of action, see City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) ("a district court need not agree that the alleged facts constitute a valid cause of action" and "prior to entering default judgment, a district court is required to determine whether the plaintiff's allegations establish the defendant's liability as a matter of law") (citations and internal punctuation omitted).

Thus, for any valid cause of action in the instant complaint, the only issue remaining is whether plaintiffs have supplied adequate support for the damages they seek. See GAKM Res. LLC v. Jaylyn Sales Inc., 2009 WL 2150891, at *2 (S.D.N.Y. July 20, 2009) ("A default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant's liability, and the sole issue that remains before the court is whether the plaintiff has provided adequate support for the relief it seeks.") (citations omitted); accord Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert denied, 506 U.S. 1080 (1993).

The Second Circuit has held that an inquest into damages may be held on the basis of documentary evidence alone, "as long as [the court has] ensured that there was a basis for the damages specified in [the] default judgment." Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); accord Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991), cert denied, 503 U.S. 1006 (1992). Plaintiffs' submissions include affidavits and attached documentary evidence. Because these submissions provide a basis for an award of damages, no hearing is required.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW Inasmuch as Meyers is in default, the complaint's properly-pleaded allegations, with the exception of those relating to damages, are accepted as true. See, e.g., Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) ("In light of [defendant's] default, a court is required to accept all . . . factual allegations as true and draw all reasonable inferences in [plaintiff's] favor . . .") (citation omitted); accord Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Union of Orthodox Jewish Congregations of Am. v. Royal Food Distribs. LLC, 665 F. Supp. 2d 434, 436 (S.D.N.Y. 2009).

The following findings of fact and conclusions of law are based on the allegations in the complaint regarding liability and the admissible evidence regarding damages in plaintiffs' and Meyers' submissions.

A. Facts Relating to Liability

Meyers is an attorney with an office in New York, NY. Compl. ¶ 4. Kuruwa is a citizen of India and his wife, Arguelles, is a citizen of Mexico. Id. ¶¶ 2,3. In August 2007, Kuruwa was hired "as a Project Engineer by the Turner Corporation." Id. ¶ 8. At the time he was hired, Kuruwa had an H1-B visa which authorized him to work in the United States. Id. ¶ 10. Kuruwa had obtained the H1-B visa in or around 1999 and it was set to expire on July 28, 2008. Id. ¶¶ 10-11. As the dependent of an H1-B visa recipient, Arguelles had an H-4 visa. Id. ¶ 17.

In September 2007, Kuruwa agreed that Meyers would process his visa paperwork to extend his stay past July 28, 2008. Id. ¶ 12. Meyers was aware that Kuruwa's visa expired in 2008 and that he needed to act quickly. See Email from M. Meyers to R. Vigilante, dated Aug. 21, 2007 (annexed as Ex. 16 to Pl. Aff.). Kuruwa's employer, Turner Corporation, agreed to sponsor Kuruwa for a green card application. Compl. ¶ 20. Meyers agreed to submit the green card application for Kuruwa. Id. ¶ 21. Meyers claimed to have filed the green card application, see id. ¶ 23; id. Ex. A, but in fact did not do so, id. ¶ 24. Nor did Meyers file for an extension of the H1-B visa before it expired. Id. ¶ 25. Kuruwa did not learn that his paperwork was not completed until March 7, 2009, when he was notified by the Department of Homeland Security that a petition to extend his B-2 status had been denied. Id. ¶ 26. Kuruwa also learned that someone, without his authorization, had filed a petition to change his status to "B1/B2 - business or tourist." Id. ¶ 27, 29.

Kuruwa and Arguelles departed from the United States in July 2009, though they later returned. The record on this motion does not explain how they returned or what their current immigration status is. The Court notes that they appeared at a court ...

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