United States District Court, E.D. New York
MEMORANDUM & ORDER
N. VITALIANO United States District Judge
September 12, 2014, plaintiff American Empire Surplus Lines
Insurance Company ("American Empire") brought this
action against JJSL Development, Inc. ("JJSL").
See Dkt. No.1 ("Compl."). American
Empire's sole claim is that JJSL failed to pay a premium
owed under a commercial general liability policy that
American Empire issued to JJSL. Following more than one year
of protracted discovery disputes arising from defendant's
repeated and unapologetic failure to produce documents and
respond to interrogatories, American Empire has moved
pursuant to Federal Rule of Civil Procedure 37, to (1) strike
JJSL's answer, (2) enter a default judgment against JJSL,
and (3) award attorney's fees associated with
defendant's discovery noncompliance. See Dkt.
Nos. 16, 21, 22.
March 28, 2016, plaintiffs Rule 37 motion was respectfully
referred to Magistrate Judge Peggy Kuo to make a Report and
Recommendation ("R&R"). Magistrate Judge
Kuo's R&R issued on February 13, 2017, which
recommended that the motion be granted in its entirety. Dkt.
No. 23 ("R&R"). The R&R gave notice that
any objection had to be filed within 14 days of
service. The Court now adopts the R&R as the
opinion of the Court.
reviewing a report and recommendation of a magistrate judge,
a district court "may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1)(C).
Further, a district judge is required to "determine
de novo any part of the magistrate judge's
disposition that has been properly objected to."
Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
636(b)(1)(C); Arista Records, LLC v. Doe 5, 604 F.3d
11C, 116 (2d Cir. 2010). But, where no timely objection has
been made, the "district court need only satisfy itself
that there is no clear error on the face of the record"
to accept a magistrate judge's Report and Recommendation,
Gesualdi v. Mack Excavation & Trailer Serv.,
Inc., No. 09-CV-2502 (KAM) (JO), 2010 WL 985294, at *1
(E.D.N.Y. Mar. 15, 2010) (citation and internal quotations
omitted), and "may adopt those portions of the
[r]eport... which are not facially erroneous[, ]"
Price v. City of New York, 797 F.Supp.2d 219, 223
(E.D.N.Y. 2011) (citation omitted).
instance, no objection has been filed by either party, and the
time to do so has passed. After careful review of the record,
the Court finds the R&R to be correct, well-reasoned, and
free of any clear error. The Court, therefore, adopts the
R&R as the opinion of the Court.
a defendant's default, judgment against that defendant
may not enter unless the district court has found that the
claim has been plausibly pleaded. See J & J Sports
Prods., Inc. v. LX Food Grocery Inc., No. 15CV6505NGGPK,
2016 WL 6905946, at *2 (E.D.N.Y. Nov. 23, 2016)
("[B]efore a district court enters a default judgment,
it must determine whether the allegations in [the] complaint
establish the defendant's liability as a matter of
law.") (alterations in original) (quoting Taizhou
Zhongneng Imp. & Exp. Co., Ltd. v. Koutsobinas,
'109 Fed.App'x. 54, 56 (2d Cir. 2013)). The Court
finds that American Empire has plausibly albgeel that JJSL
breached the commercial general liability insurance policy,
under which American Empire provided liability insurance to
JJSL from December 15, 2012 to December 15, 2013, when JJSL
failed to pay the requisite premium, causing American Empire
to suffer damages. Compl. at 2-5. Manifestly, the essential
elements of a breach of contract claim have been plausibly
pled. See Wausau Bus. Ins. Co. v. Sentosa Care LLC,
10 F.Supp.3d 444, 454 (S.D.N.Y. 2014). This; finding is made
nunc pro tunc as of March 28, 2016, the date
plaintiffs Rule 37 motion was referred to Magistrate Judge
Kuo. Accordingly, default judgment shall enter in the amount
of $ 156, 542.86, the sum certain sought in the
to Federal Rule of Civil Procedure 37(b)(2), JJSL's
answer is stricken, and tie Court grants American
Empire's motion for default judgment against JJSL in the
amount of $156, 542.86. The Court also grants American
Empire's request for attorney's fees related to
JJSL's noncompliance, in the amount of $12, 349, as
recommended by Magistrate Judge Kuo in her R&R. Damages
are, therefore, awarded against JJSL in the amount of
$168, 891.86. The Clerk of Court is directed to
enter judgment accordingly and to close this case.
 That appropriate notice was given is
confirmed by the docket. In addition to having be;n served
via ECF, defendant received a copy of the R&R on or about
February 14, 2017 by way }f ...