United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
the United States of America ("Plaintiff")
commenced this student loan debt enforcement action against
Defendant Shondell A. Mance a/k/a Shondell Mance on May 11,
2017. (Compl. (Dkt. 1).) To date, Defendant has not answered
or moved with respect to the complaint. Plaintiff now moves
for default judgment. (Mot. for Default J. ("Mot.")
(Dkt. 9).) For the reasons set forth below, the court GRANTS
filed its complaint in this action on May 11, 2017, seeking
to enforce a student loan agreement pursuant to 20 U.S.C.
§ 1080. (Compl.) In support of its claim,
Plaintiff attaches to the complaint a "Certificate of
Indebtedness" issued by the United States Department of
Education (the "Certificate"). (Compl. at ECF p.3.)
The Certificate alleges that Defendant executed a promissory
note on or about April 5, 2000, to secure a loan from the
Department of Education, and that this loan was disbursed in
two payments of $46, 397.39 and $8, 190.82, respectively, on
August 2, 2002, with interest accruing at a rate of 6.75
percent per annum. (Id.) The Certificate further
alleges that Defendant defaulted on her obligation on
September 17, 2009, after Plaintiff demanded payment.
(Id.) Pursuant to 34 C.F.R. § 685.202(b), the
Department of Education capitalized an amount of $13, 778.23
in unpaid interest and added it to the principal balance.
(Id.) The interest rate of 6.75 percent per annum
equals $11.87 per day. (Id.) As of May 11, 2017, the
principal was $64, 211.51 and the capitalized interest
balance and accrued interest was $36, 703.81, totaling a debt
of $100, 915.32. (Compl. ¶ 3.) Plaintiff calculates
that, due to interest accrual and out-of-pocket expenses
incurred by Plaintiff for the service of the summons and
complaint, the total balance owed by Defendant has risen to
$101, 668.74 as of July 7, 2017. (Affirmation of Michael T.
Sucher, Esq., ("Sucher Affirm.") (Dkt. 9-1) ¶
11.) The complaint further alleges that "[d]emand has
been made upon the defendant for payment of the indebtedness,
and the defendant has neglected and refused to pay the
same." (Compl. ¶ 5.) Plaintiff seeks damages of the
total balance allegedly owed, plus prejudgment interest
through the date of judgment, post-judgment interest pursuant
to 28 U.S.C. § 1961, adrninistrative costs, and
attorneys' fees. (Compl. ¶¶ 3-5).
of process was effected on May 31, 2017, at Defendant's
residence by leaving copies of the summons and complaint with
an adult of suitable age and discretion. (See
Aff. of Service (Dkt. 6).) Copies were also mailed to
Defendant's residence by first-class mail on June 1,
Defendant failed to file an answer or otherwise move with
respect to the complaint, the Clerk of Court entered a notice
of default on June 30, 2017, pursuant to Federal Rule of
Civil Procedure 55(a). (Entry of Default (Dkt. 8).) On July
7, 2017, Plaintiff moved the court to enter default judgment
(the "Motion"). (Mot.) In support of the Motion,
Plaintiff annexed a copy of the promissory note that forms
the basis for the present claim (the "Promissory
Note"). (Ex. 2 to Mot. ("Promissory
Note") (Dkt. 9-3).) Of note, the Promissory Note does
not list the loan or disbursement amounts. (Id.)
Defendant neither responded to the complaint nor requested
additional time to respond.
the court is Plaintiffs motion for default judgment seeking
relief for Defendant's alleged failure to pay back
student loans. Defendant has not moved or responded to the
allegations, and the clerk has entered a notation of default.
Plaintiffs allegations, accepted as true, establish a
legitimate cause of action entitling Plaintiff to relief.
Plaintiff has not filed sufficient documentation on which to
base an award of damages, however, and so the court refers
this matter to Magistrate Judge Robert M. Levy for an inquest
and Report and Recommendation regarding damages.
Federal Rules of Civil Procedure have prescribed procedural
steps for entering a default judgment. See Fed.R.Civ.P. 55.
The procedure "following a defendant's failure to
plead or defend as required by the Rules begin[s] with the
entry of default by the clerk upon a plaintiffs
request." Meehan v. Snow, 652 F.2d 274, 276 (2d
Cir. 1981) (per curiam). Federal Rule of Civil
Procedure 55(a) states that "[w]hen a party against whom
a judgment for affirmative relief is sought has failed to
plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party's
default." Fed.R.Civ.P. 55(a). Once the clerk has entered
default, pursuant to Rule 55(c), the defendant has an
opportunity to move to have the default set aside.
Meehan, 652 F.2d at 276. If the defendant fails to
do so or the motion is unsuccessful, judgment by default may
be entered by the court pursuant to Rule 55(b)(2).
determining whether to enter default judgment in the first
instance, the court is guided by the same factors that apply
to a motion to set aside entry of default. See Enron Oil
Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993);
Pecarskv v. Galaxiworld.com, Ltd., 249 F.3d 167,
170-71 (2d Cir. 2001). These factors are "(1) whether
the defendant's default was willful; (2) whether the
defendant has a meritorious defense to plaintiffs claims; and
(3) the level of prejudice the non-defaulting party would
suffer as a result of the denial of the motion for default
judgment." Mason Tenders Dist. Council v. Puce
Constr. Corp., No. 02-CV-9044 (LTS) (GWG), 2003 WL
1960584, at * 2 (S.D.N.Y. Apr. 25, 2003) (citation omitted):
see also Basile v.Wiggs, No. 08-CV-7549 (CS) (GAY),
2009 WL 1561769, at *4 (S.D.N.Y. May 29, 2009) (listing
factors for court's consideration including defaulting
party's bad faith, "possibility of prejudice to the
plaintiff, the merits of the plaintiff['s] substantive
claim, the sufficiency of the complaint, the sum at stake,
[and] whether the default was due to excusable neglect")
(second alteration in the original) (quoting Feelv v.
Whitman Corp., 65 F.Supp.2d 164, 171 (S.D.N.Y.1999)).
the first factor, the failure by Defendant to respond to the
complaint sufficiently demonstrates willfulness. See,
e.g., Indvmac Bank v. NatT Settlement Agency, Inc., No.
07-CV-6865 (LTS) (GWG), 2007 WL 4468652, at * 1 (S.D.N.Y.
Dec. 20, 2007). Defendant has not attempted to defend herself
in the present action, nor did she request an extension of
time to respond to the complaint. Based on its review of the
docket, the court concludes that Defendant has had sufficient
notice of the present litigation. Plaintiff has demonstrated
that Defendant was properly served with the summons and
complaint. (Aff. of Service.) On May 31, 2017, a true copy of
the summons and complaint was left with a person of suitable
age and discretion at Defendant's residence.
(Id.) A copy of the summons and complaint was also
mailed to Defendant on June 1, 2017. (Id.) On July
10, 2017, Plaintiff served the instant motion for default
judgment and supporting papers, by post, at the residence of
Defendant. (Ex. 5 to Mot. ("Martsenyuk Aff.") (Dkt.
9-5).) A review of the docket therefore establishes that
Defendant has willfully failed to plead or defend her
interest in this action.
the second factor-whether Defendant has a meritorious
defense-the court concludes that Defendant's failure to
present a defense precludes the court from finding in
Defendant's favor. The court is unable to determine
whether there is a meritorious defense to Plaintiffs
allegations because Defendant has presented no such defense
to the court. Following default, the court must accept the
factual allegations of the complaint as true. Chen v.
Jenna Lane, Inc., 30 F.Supp.2d 622, 623 (S.D.N.Y. 1998).
Taking the allegations presented here as true, the court sees
no meritorious defense and so concludes that the second
factor favors granting default judgment.
final factor the court must consider is whether the
non-defaulting party would be prejudiced if the motion for
default were denied. In this case, denying default judgment
would be prejudicial to Plaintiff "as there are no
additional steps available to secure relief in this
Court." Bridge Oil Ltd. v. Emerald Reefer Lines,
LLC, No. 06-CV-14226 (RLC) (RLE), 2008 WL 5560868, at *2