United States District Court, E.D. New York
F. BIANCO, District Judge.
November 23, 2015, plaintiff filed a complaint in this
action. On December 10, 2015, plaintiff served defendant with
a copy of the complaint. Defendant, however, failed to answer
or appear in this action. On February 4, 2016, plaintiff
moved for entry of default against defendant, which the Clerk
of the Court noted on February 5, 2016. On March 21, 2016,
plaintiff moved for a default judgment against defendant. By
Order dated March 22, 2016, the Court directed defendant to
respond in writing within fourteen days as to why a default
judgment should not be entered. Plaintiff served that Order
and a copy of its motion for default on defendant on March
22, 2016 and filed proof of service on October 20, 2016. By
Order dated November 16, 2016, the Court granted plaintiffs
motion for a default judgment against defendant and referred
the calculation of damages to Magistrate Judge Lindsay for a
Report and Recommendation.
February 21, 2017, Magistrate Judge Lindsay issued a Report
and Recommendation (the "R&R") recommending,
based on the evidentiary submissions made by plaintiff, that
the Court award plaintiff (1) statutory damages in the amount
of $1, 000 on plaintiffs Fair Debt Collections Practices Act
claim, pursuant to 15 U.S.C. § 1692k(a); and (2)
attorneys' fees and costs in the amount of $4, 991.50,
pursuant to 15 U.S.C. § 1692k(a)(3). (R&R at 6.) The
R&R further instructed that any objections to the R&R
be submitted within fourteen (14) days of service.
(Id. at 7.) Plaintiff served defendant with a copy
of the R&R on February 27, 2017, and although the date
for filing objections has expired, defendant has not filed
any objections to date.
there are no objections, the Court may adopt the report and
recommendation without de novo review. See
Thomas v. Am, 474 U.S. 140, 150 (1985) ("It does
not appear that Congress intended to require district court
review of a magistrate's factual or legal conclusions,
under a de novo or any other standard, when neither
party objects to those findings."); see also Mario
v. P & C FoodMkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002) ("Where parties receive clear notice of the
consequences, failure timely to object to a magistrate's
report and recommendation operates as a waiver of further
judicial review of the magistrate's decision.");
cf. 28 U.S.C. § 636(b)(1)(c) and Fed.
R. Civ. P. 72(b)(3) (requiring de novo review after
objections). However, because the failure to file timely
objections is not jurisdictional, a district judge may still
excuse the failure to object in a timely manner and exercise
its discretion to decide the case on the merits to, for
example, prevent plain error. See Cephas v. Nash,
328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause the waiver
rule is non jurisdictional, we 'may excuse the default in
the interests of justice.'" (quoting
Thomas, 474 U.S. at 155)).
obtain damages related to a default judgment, "a
plaintiff must present admissible evidentiary proof of his
alleged damages, unless the claimed amount is liquidated or
susceptible to mathematical calculation." In re
Suprema Specialties, Inc., 330 B.R. 40, 54-55 (S.D.N.Y.
2005) (citing SEC v. Mgmt. Dynamics, 515 F.2d 801,
814 (2d Cir.1975) ("[U]nless the amount of damages are
absolutely certain, the court is required to make an
independent determination of the sum to be awarded.").
Rule 55(b)(2) permits a court to conduct a hearing "as
it deems necessary and proper" to calculate damages,
"vesting considerable discretion in the court to
establish the procedures appropriate to the particular
case." Id. at 55. However, a hearing is not
necessary "as long as [the court] ensure [s] that there
[is] a basis for the damages specified in a default
judgment." Fustok v. ContiCommodity Servs.,
Inc., 873 F.2d 38, 40 (2d Cir.1989).
defendant has waived any objection to the R&R and thus
de novo review is not required, the Court has
conducted a de novo review of the R&R in an
abundance of caution. Having conducted a review of the full
record and the applicable law, and having reviewed the
R&R de novo, the Court adopts the findings and
recommendations contained in the well-reasoned and thorough
R&R in their entirety. Accordingly, IT IS HEREBY ORDERED
that a judgment by default is entered in favor of plaintiff
Giovanni Divella as against defendant Empire Credit &
Collection, Inc. in the total amount of $5, 991.50,
representing (1) $1, 000 in statutory damages; and (2) $4,
991.50 in attorneys' fees and costs.
FURTHER ORDERED that the Clerk of the Court enter judgment
accordingly and close this case.
FURTHER ORDERED that plaintiff serve a copy of this Order on
defendant and ...