United States District Court, N.D. New York
OVERTON, RUSSELL, DOERR &LINDA L. DONOVAN, ESQ. DONOVAN,
LLP Attorneys for Plaintiff
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge:
November 10, 2015, the United States of America
("Plaintiff") commenced this action alleging that
Christine LaBarge ("Defendant") defaulted on two
promissory notes. See Dkt. No. 1 at 2-3. On July 18,
2016, the Court granted Plaintiff's motion for default
judgment with respect to liability, but denied the demanded
relief with leave to reapply for damages. See Dkt.
No. 10 at 6. Currently before the Court is Plaintiff's
motion for entry of damages. See Dkt. No. 14.
Court has taken the facts set forth below from
Plaintiff's complaint, the Certificates of Indebtedness
from the U.S. Department of Education, an affidavit submitted
by Plaintiff's counsel, and attached exhibits.
is a resident of Clinton County, New York. See Dkt.
No. 1 at 1. Plaintiff's first cause of action asserts
that Defendant executed a promissory note on or about October
22, 2002 to secure a Direct Consolidation loan from the U.S.
Department of Education. See Dkt. No. 1 at 2; Dkt.
No. 1-1 at 1; Dkt. No. 14 at 3. According to the Certificate
of Indebtedness from the U.S. Department of Education related
to that loan (the "First Certificate of
Indebtedness"), the loan was disbursed for $697.00 on
November 12, 2002 at 6.875% interest per annum. See
Dkt. No. 14 at 3. Defendant defaulted on the loan on
September 24, 2003. See Id. As of August 26, 2016,
Defendant owed $289.51 in principal and $209.41 in interest.
See id. Interest accrues on the principal at a rate
of $0.05 per day. See id.
second cause of action asserts that Defendant executed a
promissory note on or about February 27, 2004 to secure a
Direct Consolidation loan from the U.S. Department of
Education. See Dkt. No. 1 at 2; Dkt. No. 1-1 at 2;
Dkt. No. 14 at 4. According to the Certificate of
Indebtedness related to that loan (the "Second
Certificate of Indebtedness"), the loan was disbursed
for $3, 477.94 on January 26, 2005 at 7.00% interest per
annum. See Dkt. No. 14 at 4. Defendant defaulted on
the loan on November 25, 2005. See Id. As of August
26, 2016, Defendant owed $3, 439.33 in principal and $2,
788.86 in interest. See Id. Interest accrues on the
principal at a rate of $0.66 per day. See id.
December 12, 2015, Plaintiff served Defendant with the
complaint. See Dkt. No. 4. Plaintiff filed a request
for entry of default on January 5, 2016. See Dkt.
No. 5. On January 8, 2016, the Clerk of the Court entered
default against Defendant pursuant to Rule 55(a) of the
Federal Rules of Civil Procedure. See Dkt. No. 7;
Fed.R.Civ.P. 55(a). On January 11, 2016, Plaintiff filed a
motion for default judgment pursuant to Rule 55(b) of the
Federal Rules of Civil Procedure. See Dkt. No. 8.
18, 2016, this Court granted Plaintiff's motion for
default judgment with respect to liability, but denied
Plaintiff's motion with respect to damages because
Plaintiff failed to meet its burden to establish a basis for
the damages claimed. See Dkt. No. 10 at 5-6. While
Plaintiff submitted an attorney Affidavit of Amount of Due,
setting forth the principal, the interest owed, and the per
annum rate of interest, Plaintiff failed to satisfy Local
Rule 55.2, which requires the interest rate submitted to be
calculated at a per diem rate as well as the per annum rate.
See Id. at 4-5; see also Local Rules
N.D.N.Y. 55.2(a). Additionally, the Court found that
Plaintiff could not recover server and travel fees for
serving Defendant with the summons and complaint without
proving that these costs were actually incurred. See
Dkt. No. 10 at 5.
order to establish its entitlement to the damages claimed,
Plaintiff was directed to submit a certificate of
indebtedness, a full promissory note, disbursement history,
demand for payment, evidence of the date of default, and
evidence of the amount of the loan applied for and actually
received. See Id. at 6. On August 12, 2016,
Plaintiff submitted a letter request for an additional 30
days to obtain the necessary documentation to establish its
claimed damages. See Dkt. No. 12. On September 7,
2016, Plaintiff submitted an attorney Affidavit of Amount Due
and the Certificates of Indebtedness. See Dkt. No.
a default occurs, the well-pleaded factual allegations set
forth in a complaint relating to liability are deemed
true." Gesualdi v. Seacost Petroleum Prod.,
Inc., 97 F.Supp.3d 87, 95 (E.D.N.Y. 2015) (citing
Greyhound Exhibitgroup, Inc. v. E.L. U.L. Realty
Corp., 973 F.2d 155, 158 (2d Cir. 1992) (other citations
omitted)). "While a default judgment constitutes an
admission of liability, the quantum of damages remains to be
established by proof unless the amount is liquidated or
susceptible [to] mathematical computation." Flaks v.
Koegel, 504 F.2d 702, 707 (2d Cir. 1974) (citations
omitted); see also Joseph v. HDMJ Rest., Inc., 970
F.Supp.2d 131, 149 (E.D.N.Y. 2013) (citations omitted).
"[E]ven upon default, a court may not rubber-stamp the
non-defaulting party's damages calculation, but rather
must ensure that there is a basis for the damages that are
sought." Overcash v. United Abstract Group,
Inc., 549 F.Supp.2d 193, 196 (N.D.N.Y. 2008) (citing
Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183
F.3d 151, 155 (2d Cir. 1999)). "The burden is on the
plaintiff to establish its entitlement to recovery."
Bravado Int'l Grp. Merch. Servs., Inc. v. Ninna,
Inc., 655 F.Supp.2d 177, 189 (E.D.N.Y. 2009) (citation
omitted). "While 'the court must ensure that there
is a basis for the damages specified in a default judgment,
it may, but need not, make the determination through a
hearing.'" Id. at 190 (quotation omitted).
was directed to submit specific documentary evidence
sufficient to "ascertain the amount of damages with
reasonable certainty." Alcantara, 183 F.3d at
155 (citation omitted). "[A] document containing both
the borrower's signature and the amount of the loan
applied for and disbursed" may serve as a basis for an
award of damages. See United States v. Linn, No.
10-CV-5289, 2011 WL 2848208, *3 (E.D.N.Y. July 14, 2011). In
addition, damages have been awarded "relying solely on
Certificates of Indebtedness." United States v.
Reeves, No. 5:12-CV-0886, 2013 WL ...