REPORT AND RECOMMENDATION
LISA MARGARET SMITH, Magistrate Judge.
TO: THE HONORABLE CATHY SEIBEL, U.S.D.J.1
Plaintiffs Forthill Construction Corp., Martin McKernan, and Margaret McKernan (collectively, "Plaintiffs" or "Forthill") commenced this action in New York State Supreme Court, Westchester County on June 30, 2017, asserting claims against Defendant Blue Acquisition, LLC ("Blue Acquisition") for declaratory and injunctive relief and violation of the New York Uniform Commercial Code ("NY UCC") related to Blue Acquisition's filing of a UCC-1 financing statement and providing notice of its asserted lien rights in proceeds due and owing to Forthill. On July 17, 2017, Blue Acquisition removed the action to federal court on the basis of diversity jurisdiction, Docket # 3, and on July 25, 2017, Blue Acquisition filed an Answer with Counterclaims for breach of contract and quantum meruit related to a term sheet signed by the parties in connection with obtaining loans for Forthill. Docket # 9.
Pursuant to a Stipulation signed by Your Honor on December 7, 2018, Blue Acquisition's counsel withdrew from its representation, and Your Honor ordered new counsel for Blue Acquisition to file a notice of appearance by no later than January 7, 2019. Docket # 58. After Blue Acquisition failed to retain new counsel, Forthill moved by way of an Order to Show Cause for the entry of an order that would (1) hold Blue Acquisition in default and grant a default judgment on Forthill's first claim, i.e., declare invalid the liens referenced in the Complaint and vacate the UCC-1 financing statement filed by Blue Acquisition with respect to such claimed liens; (2) schedule a hearing to determine the damages to be awarded to Forthill on its second claim, and upon such determination, enter an award of damages in favor of Forthill; and (3) dismiss Blue Acquisition's counterclaims as abandoned pursuant to Federal Rule of Civil Procedure 41. Docket # 68.
On April 23, 2019, Your Honor signed an Order which stated that
any and all liens claimed by [Blue Acquisition] with respect to a term sheet entered into between the parties in 2017 for certain prospective financing are declared invalid and are hereby vacated, and the UCC-1 financing statement filed on or about June 1, 2017, with the New York Secretary of State under index number 211135 by Blue Acquisition, LLC, as secured party against Forthill Construction Corp. as debtor and identifying various collateral of the debtor on schedules "A" and "B" thereto, consisting of equipment and accounts receivable including but limited to[2] moneys owed to Forthill by EO 180 Water Street, LLC, is declared VOID and hereby VACATED, and the New York Secretary of State is directed to note same upon being served with a copy of this Order....
Docket # 75 ("April 23 Order"). The Order also dismissed with prejudice Blue Acquisition's counterclaims and directed that Forthill is entitled to a judgment "in an amount to be determined by the Magistrate Judge after an inquest." Id.
In connection with the inquest on damages, on May 3, 2019, the undersigned held a conference at which Forthill's counsel appeared, but no one appeared on behalf of Blue Acquisition, and set a schedule for Forthill to file its submission in support of its claimed damages. Docket Sheet, Minute Entry for 05/03/2019. On June 28 and 29, 2019, Forthill filed papers in support of its requested damages award and served copies of its papers on Blue Acquisition. Docket ## 79-81. Thereafter, the Court held an inquest hearing on September 23, 2019, at which again only Forthill's counsel appeared, and it ordered Forthill to file a supplemental submission in support of its request for damages by October 15, 2019. Docket Sheet, Minute Entry for 09/23/2019. As nothing had been received by the Court as of November 4, 2019, it issued an order to show cause as to why the undersigned should not recommend the entry of a default judgment denying the award of money damages to Plaintiffs. Docket # 84. In response thereto Plaintiffs' counsel provided an explanation for the failure to file a submission by the deadline and was granted an extension of time until November 14, 2019, to do so. Docket # 86. Plaintiffs' supplemental submissions were filed on November 14, Docket ## 87-89, and November 15, 2019, Docket # 90.3
For the reasons that follow, I conclude, and respectfully recommend that Your Honor should conclude, that Forthill should be awarded damages in the total amount of $1,435,325.67, plus post-judgment interest in accordance with 28 U.S.C. § 1961.
I. BACKGROUND4
Plaintiffs brought this action to recover losses that they sustained when Blue Acquisition filed a UCC-1 financing statement, placing a lien on certain of Plaintiffs' proprietary interests.
In 2016, Forthill had been seeking financing for the purpose of its business operations, and Blue Acquisition represented that it could help Forthill in obtaining such financing. Compl. (Docket # 3-2) ¶¶ 6-7. Blue Acquisition drafted and presented Forthill with a proposed term sheet ("Term Sheet"), which the parties signed on May 9, 2017. Id. ¶ 8 & Ex. A.5 The Term Sheet included terms pursuant to which a lender would be found to provide Forthill with a loan in the amount of $1,600,000.00, "with certain rights and responsibilities of the parties accruing upon the subsequent closing of a formal loan agreement." Id. ¶ 9. The Term Sheet also provided for a $300,000 promissory note from Forthill to Blue Acquisition that would only vest upon the closing of an actual loan provided by a bank in accordance with the conditions of the Term Sheet. Id. ¶ 10. Both the Term Sheet and the promissory note itself stated that the promissory note would only be payable upon the closing of a loan. Id. ¶¶ 11-12. The Term Sheet listed collateral that would be used to secure any financing that actually closed between Forthill and any lender, and such collateral was only to be provided in exchange for a loan that actually closed. Id. ¶¶ 13-14. The Term Sheet further provided that "Blue Acquisition's Term Sheet to provide the Loans is subject to the negotiation, execution and delivery of definitive Loans and security agreements, mortgages or deeds of trust, notes, and other documentation and customary certificates and legal opinions (collectively, the `Loan Documents')." Id. ¶ 15 & Ex. A.
No loan was closed with Blue Acquisition or any other lenders presented to Forthill in connection with either Blue Acquisition or the Term Sheet. Id. ¶ 17. However, on June 1, 2017, Blue Acquisition filed a UCC-1 financing statement with the Secretary of State of the State of New York, listing Blue Acquisition as a lender and Forthill as a borrower, and providing notice as to Blue Acquisition's interest in certain of Forthill's equipment and contracts (the "Financing Statement"). Id. ¶ 19 & Ex. B.6 In addition, on May 30, 2017, Blue Acquisition sent correspondence to Forthill and Martin McKernan, stating that both were in default with respect to the Term Sheet ("Notice of Default"), although the Notice of Default acknowledged that there was no loan agreement or closing upon a loan ultimately agreed upon by the parties. Id. ¶¶ 21-22 & Ex. D. As a result of the default, Blue Acquisition stated that it was "terminating its financial obligations." Id. ¶ 25 (internal quotation marks and brackets omitted). The Notice of Default improperly asserted that Forthill and McKernan were liable under the promissory note and that Forthill was required to transfer a 5% stake in Forthill to Blue Acquisition, even though both of these obligations were contingent upon Forthill closing on a loan transaction with a lender, and that did not occur. Id. ¶ 26.
On June 9, 2017, Plaintiffs, through counsel, sent a letter to Blue Acquisition, demanding the discharge of all the improperly filed liens ("Demand Letter"). Id. ¶ 27 & Ex. E. The Demand Letter stated that unless the Financing Statement was discharged, Plaintiff would have no choice but to seek a judicial resolution. Id. ¶ 29. On June 27, 2017, Blue Acquisition sent a letter to Plaintiffs stating that it would begin to execute on the collateral secured by the Financing Statement. Id. ¶ 31 & Ex. F. Blue Acquisition additionally stated that it would be seeking to execute on the promissory note and on the liens on "all Forthill Construction Jobs and assets," as well as a 5% ownership stake in Forthill. Id. ¶ 32. Blue Acquisition also sent letters to several of Forthill's clients in which it stated that any and all payments owed to Forthill should instead be sent to Blue Acquisition. Id. ¶ 33 & Ex. G. On June 29, 2017, counsel for Plaintiffs contacted counsel for Blue Acquisition and again demanded that the Financing Statement be withdrawn; Blue Acquisition continued to refuse. Id. ¶ 34. Plaintiffs were contacted by several clients who asked whether they were required to withhold payment from Plaintiffs pending resolution of the issues with Blue Acquisition, with some stating that they would do so, thereby cutting off Forthill's necessary cash flow. Id. ¶ 35.
As stated at the outset, Plaintiffs commenced this action on June 30, 2017, asserting two claims against Blue Acquisition, one for declaratory and injunctive relief, and one for violation of NY UCC. Id. ¶¶ 36-54. On the first claim, Plaintiffs sought
a temporary, preliminary, and final injunction ruling that: (a) Blue Acquisition must immediately cease and desist from filing any additional liens against any of the assets and/or Collateral of Plaintiffs; (b) Blue Acquisition must immediately cease and desist from contacting any of Plaintiffs' debtor [sic] in an effort to execute upon Plaintiffs' assets and/or collateral; and (c) Blue Acquisition may not receive any of Plaintiffs' cash flow, and/or seeking [sic] to attach any streams of money and/or income, from any debtors and/or execute upon any of Plaintiffs' collateral pending a determination on the merits of the underlying dispute; and a judgment declaring that (a) Blue Acquisition must immediately withdraw and cancel the Financial Statements [sic] and/or Claim of Interest filed by Blue Acquisition related to Plaintiffs; and (b) the Term Sheet does not constitute a valid and enforceable agreement.
Id. ¶ 55. On the second claim, Plaintiffs sought "an order awarding Plaintiffs their statutory [sic] actual and statutory damages, including their attorney's fees." Id. ¶ 55.A.
II. DISCUSSION
Upon the default of a party, a court must accept as true all factual allegations in the complaint, except those relating to damages, and a plaintiff is entitled to all reasonable inferences from the evidence offered, but the court nonetheless has discretion to decide whether the facts set forth in the complaint state a valid claim. See, e.g., Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). Thus, before "assessing the propriety of a damages award after a judgment by default is entered, a court must be satisfied initially that the allegations of the complaint are well-pleaded." Nwagboli v. Teamwork Transp. Corp., No. 08-CV-4562 (JGK)(KNF), 2009 WL 4797777, at *2 (S.D.N.Y. Dec. 7, 2009)7 (internal quotation marks and citation omitted). "[I]n the context of a default judgment, a district court `is ... required to determine whether [plaintiff's] allegations establish [defendant's] liability as a matter of law.'" Bracken v. MH Pillars Inc., 290 F.Supp.3d 258, 264 (S.D.N.Y. 2017) (quoting Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (citing Au Bon Pain Corp., 653 F.2d at 65)); see Pac. M. Int'l Corp. v. Raman Int'l Gems, Ltd., 888 F.Supp.2d 385, 393 (S.D.N.Y. 2012) (explaining that in deciding whether to grant liability on a motion for default judgment, a court considers whether, inter alia, "the claims were pleaded in the complaint, thereby placing the defendant on notice") (citation omitted).
In the April 23 Order, Your Honor declared that the liens claimed by Blue Acquisition were invalid and the UCC-1 financing statement was void and vacated both the liens and UCC-1 financing statement. Thus, Your Honor found in favor of Forthill on its claim for declaratory and injunctive relief and granted the relief sought thereon. The only other claim asserted by Forthill is for violation of NY UCC §§ 9-509 and 9-510 based on Blue Acquisition's unauthorized filing of the UCC-1 financing statement. Compl. ¶¶ 48-51.8 Accordingly, based on Your Honor's finding that the UCC-1 financing statement is void and your vacatur thereof, the undersigned finds that there is a legitimate basis for the entry of a default judgment under Fed. R. Civ. P. 55(b) on Forthill's second claim for violation of the NY UCC and proceeds to the issue of damages.
Damages Resulting from the NY UCC Violation
In the context of an inquest on damages after default, the burden is on the plaintiff to establish the amount of damages sought to be recovered. See, e.g., Trinity Biotech, Inc. v. Reidy, 665 F.Supp.2d 377, 380 (S.D.N.Y. 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 can show, with `reasonable certainty,' entitlement to the amount of damages [he or she] seeks.") (citations omitted). "When assessing damages, a court cannot rely on the plaintiff's statement of the damages; rather, damages must be established `with reasonable certainty.'" Negrin v. Kalina, No. 09 Civ. 6234 (LGS)(KNF), 2013 WL 6671688, at *4 (S.D.N.Y. Dec. 17, 2013) (quoting Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997)), adopted by 2014 WL 67231 (S.D.N.Y. Jan. 7, 2014).
For the violation of NY UCC, Forthill seeks an award of actual damages under NY UCC § 9-625. See Thomas Decl. (Docket # 80) ¶ 2 ("Pursuant to UCC § 9-625, plaintiffs are entitled to actual damages on the basis of defendant's unauthorized and improper filing of the UCC-1 and other collection practices in violation of UCC Article 9.").9 Section 9-625 provides that "a person is liable for damages in the amount of any loss caused by a failure to comply with [article 9]. Loss caused by a failure to comply may include loss resulting from the debtor's inability to obtain, or increased costs of, alternative financing." N.Y. UCC § 9-625(b).10
In his declaration in support of Plaintiffs' request for damages, Plaintiff Martin McKernan explains that as part of Forthill's efforts to obtain financing "to meet gaps in cash flow and finance our continued growth," "we negotiated at length with a loan broker called Blue Acquisition, LLC, and entered into a term sheet for certain financing." McKernan Decl. (Docket # 79) ¶ 4. McKernan states that before closing on a loan, however, Plaintiffs determined that the terms of the parties' agreement were "too onerous, and—with the express blessing of Blue Acquisition's principal—we opted to look elsewhere for financing." Id. Plaintiffs instead entered into a loan with Dime Community Bank in June, 2017, in the principal amount of $1.2 million. Id. Plaintiffs Martin and Margaret McKernan both personally guaranteed the Dime Community Bank loan. Id.
McKernan proceeds to describe how, "[a]fter entering into the agreement for financing with Dime, and in view of Blue Acquisition's clear acquiescence in our determination not to follow through with the loan it had proposed," he and his wife
were shocked to learn in June, 2017 that Blue Acquisition had both filed a UCC-1 financing statement in the amount of $300,000 against Forthill's accounts receivable and sent notices of lien to Forthill's six largest clients, i.e., six general contractors with whom we were engaged in major projects at that time, namely, CCNY Construction, Inc., EO 180 Water Street LLC, Gilbane Building Co., Procaida Construction Corp., Ryder Construction Corp., and Wonder Work Construction Corp. Although we immediately advised these companies that the lien was wholly without basis insofar as we had never closed on the Blue Acquisition loan, they were nonetheless unwilling to release any funds owed to us upon receiving notice of the lien.
Id. ¶ 5. McKernan adds that in June, 2017, these general contractors "owed us a combined total of approximately 2.5 million dollars that would have otherwise been timely paid...." Id. ¶ 6. He states that "on Blue Acquisition's refusal to lift its lien my attorneys sought preliminary injunctive relief by filing an action in New York State Supreme Court, Westchester County." Id. At the initial hearing, the state court judge "restrained any further collection efforts by Blue Acquisition," causing five of the six general contractors to release the funds that they owed to Forthill. Id.11
McKernan explains the damages that ensued as follows:
At this time Forthill was involved in six major projects for the above-named general contractors, but was also running approximately eight other smaller jobs. To have its principal cash flow choked off for three weeks[12] was to be unable to meet weekly payroll of approximately $220,000; to be unable to meet monthly insurance obligations of approximately $270,000; and, perhaps most critically, to be unable to pay its suppliers—chiefly of concrete, rebar, and other masonry materials— their monthly bills of approximately $300,000. The resulting layoffs and shortages immediately caused huge delays in our vital work not only on the large jobs but on the lesser ones as well. The upshot was a snowballing breakdown in Forthill's relationship with all its clients, as well as with its workforce and vendors, ultimately leading to the effective collapse of the company.
Id. ¶ 7.
Forthill attempted to mitigate its damages "by using the $1.2 million it recently had been loaned by Dime," but this money "had been intended for other purposes," not "as an immediate substitute for the vast bulk of the company's prior cash flow," and "when [Plaintiffs] were ultimately unable to salvage [their] business, ... [they] were then left in the ironic position of being wholly unable to repay the Dime loan, causing Dime to sue Forthill, as well as [Martin and Margaret McKernan] as guarantors, for the full amount of that loan, which has been reduced to a judgment against [them] currently in the amount of $1,425,325.67." Id. ¶ 8; see also id. ¶ 13 (Plaintiffs' liability on the Dime loan "is similarly an item of damages for which defendant should be answerable"). Forthill also sought to mitigate its damages "by obtaining additional financing from Orange Trust Bank[13], with which Forthill already had a working credit line of $250,000.... However, when Orange Trust Bank learned of the lien that Blue Acquisition had placed on Forthill's receivables, [McKernan] was informed ... that no additional financing would be forthcoming, and indeed that the existing 250,000 credit line was to be rolled into a note to be repaid in 24 months." Id. ¶ 9 & Ex. A.
McKernan states that as a result of all of these financial difficulties caused by the filing of the UCC-1 financial statement and the lien, "[b]y the end of 2017, ... Forthill had largely been sunk as a going concern after five years of steady growth and in the face of a robust economy." Id. ¶ 10. He adds that delays in performance resulting from the interruption in Forthill's cashflow, "caused all [of Forthill's] major clients to deny Forthill's bids on multiple projects in the second half of 2017," and because of the lien, "by the end of 2017 Forthill was effectively finished, and reported a tax loss of $2,290,390 on gross receipts of 22,059,789 for 2017." Id.; see Suppl. McKernan Decl. (Docket # 87) Ex. A. (Forthill's tax returns for 2011-2017).
Forthill also claims damages for lost profits and future net earnings for the five-year period of 2017-2021 in the amount of $525,000, explained as follows: "Forthill's reported profits for the years 2014-2016 averaged 104,596. Especially given the robust growth of the regional economy in 2017 and 2018, there is no reason to believe that the company would not have continued to grow, but in any event it would have likely continued to realize profits in at least those amounts." McKernan Decl. ¶ 11. Similarly, McKernan claims damages for his lost compensation as president of Forthill stating,
As reflected in Forthill's tax returns as well as my own, I received salary and other compensation from the company averaging 140,000 during the period 2012-1016 [sic] and averaging 175,000 during the three-year period 2014-2016; accordingly plaintiffs request an award to me individually in the amount of 875,000 for five years of past and future lost earnings, which are again based on the (conservative) assumption that I would have continued to draw at least that much compensation from the company.
Id. ¶ 12.
Based on the foregoing, as summarized by Forthill in its Statement of Damages previously submitted in support of its motion for a default judgment, Plaintiffs "seek a judgment in the amounts of (1) 525,000 in lost profits/net earnings by plaintiff Forthill; (2) 875,000 in lost earnings by plaintiff Martin McKernan; and (3) 1,425,325.67, the liability incurred by all three plaintiffs as a result of their default on the Dime loan, a default that occurred as a proximate and foreseeable consequence of defendant's wrongful filing of its financing statement." Statement of Damages (Docket # 71) at 3.
Forthill's Lost Profits/Net Earnings and McKernan's Lost Compensation
As noted above, Plaintiffs bear the burden of establishing damages "with reasonable certainty." However, they have failed to provide the Court with legal support for their claimed entitlement to damages under NY UCC § 9-625 of either the corporation's lost profits/net earnings or McKernan's lost compensation for a five-year period (2017-2021) that spans expected losses incurred even years after the filling of the UCC-1 financial statement and lien. They do not cite, and the Court has not been able to find, any cases to support the award of future lost profits and/or future lost compensation as damages for a violation of NY UCC § 9-625. The damages amounts that Plaintiffs seek are based on speculative assumptions regarding Forthill's business prospects and, to the extent Plaintiffs try to substantiate their claims to lost profits and lost compensation, they provide inadequate explanations of their submitted evidence and the damages requests derived therefrom.
Plaintiffs have submitted copies of 22 documents covering the period from October, 2016, to December, 2017, "reflecting Forthill construction bids that were either (1) pending as of the time defendant filed its unauthorized lien in June, 2017 or (2) submitted for prospective jobs subsequently to the filing of the lien." Suppl. McKernan Decl. ¶ 4 & Ex. C. McKernan states that "none of these submitted bids were successful," even though Forthill had historically won "nearly one-fifth" of all bids that it made. Id. ¶ 4. In his supplemental declaration, McKernan notes that thirteen of these bids "were for jobs with general contractors who had been served with defendant's notice of lien—CCNY Construction, Gilbane, and Wonder Works—and our relationships with which were instantly destroyed." Id. He then adds, "Although the various other general contractors listed were not served with defendant's notice of lien, several were entities with which we had previously had working relationships but who suddenly wanted nothing to do with us." Id. Despite McKernan's representation regarding the percentage of bids that Forthill had historically won, there is no evidence that Forthill would have actually won any of the 22 bids cited in Plaintiffs' submission had the lien and UCC-1 financing statement not been filed. And even if Forthill would have won one-fifth of the bids included in Exhibit C to McKernan's supplemental declaration (and McKernan nowhere tallies the dollar amount of all 22 bids combined or even the dollar amount of the one-fifth of those bids that Forthill would have expected to win), he provides no calculation of the actual amount of profits that those bids would have generated for Forthill. For example, as reflected in Forthill's tax return for 2016, gross receipts of $13,375,170 yielded only $70,909 in ordinary business income, i.e., profits. Suppl. McKernan Decl. Ex. A. Plaintiffs thus do nothing to explain how the bids that they submitted to the Court relate to their projection of lost profits/net earnings based on their tax returns. Additionally, although Plaintiffs have submitted copies of Forthill's tax returns for the years 2011-2017, id., there is no way of assessing whether Forthill would have continued to generate the same level of profits/net earnings in the five-year period of 2017-2021 had the UCC-1 financing statement and lien not been filed.
Similarly, in support of their claimed entitlement to damages for McKernan's lost compensation, Plaintiffs have provided copies of the individual tax returns filed jointly by the McKernans for the years 2011-2017, Suppl. McKernan Decl. Ex. B, but again there is no way of knowing whether Forthill would have or could have continued to compensate McKernan at the same rate. Moreover, Plaintiffs provide no explanation of the individual tax returns to enable the Court to understand how they derived the dollar amounts contributing to their calculations that McKernan "received salary and other compensation from the company averaging 140,000 during the period 2012-1016 [sic] and averaging 175,000 during the three-year period 2014-2016." McKernan Decl. ¶ 12.
In sum, Plaintiffs have failed to provide any legal support for the notion that they can establish their entitlement to damages for Forthill's lost profits/net earnings and/or McKernan's lost compensation based solely on their own projections and expectations, and they have not otherwise provided a sufficient explanation of the evidence that they have submitted in support of their damages requests. The Court therefore cannot conclude that Plaintiffs have carried their burden to establish their entitlement to these damages with "reasonable certainty." Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiffs are not entitled to an award of damages for either Forthill's lost profits/net earnings or McKernan's lost compensation.
Default on Dime Community Bank Loan
With respect to the damages resulting from Plaintiffs' default on the loan from Dime Community Bank after the filing of the UCC-1 financing statement and lien, Plaintiffs have provided the Court with a copy of the judgment entered against them in the action brought by Dime Community Bank in New York State Supreme Court. Docket # 87-4. As McKernan explains in his declaration, the filing of the UCC-1 financing statement and lien caused irreparable harm to Forthill's business and prevented Plaintiffs from obtaining other financing from Orange Bank & Trust, thereby leading to Plaintiffs' default on the Dime Community Bank loan. McKernan Decl. ¶ 9 & Ex. A. The dollar amount of the judgment thus constitutes a "loss caused by [Blue Acquisition's] failure to comply with [article 9]," which loss "may include loss resulting from [Plaintiffs'] inability to obtain, or increased costs of, alternative financing." N.Y. UCC § 9-625(b). Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiffs are entitled to an award of $1,435,325.67 in damages suffered as a result of their default on the loan from Dime Community Bank.14
Pre-Judgment Interest and Post-Judgment Interest
Plaintiffs do not seek an award of pre-judgment interest in their inquest submission, and the Court declines to recommend one. The Complaint does not include a demand for pre-judgment interest, and its catch-all request for "such other and further relief as the Court deems just and equitable" does not serve as such a demand. See Guanghong Int'l (HK) Ltd. v. Ultimate Fin. Solutions LLC, No. 11 Civ. 4019, 2012 WL 1228085, at *6 (S.D.N.Y. Mar. 26, 2012) (citing Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007)), adopted by, 2012 WL 2402902 (S.D.N.Y. June 26, 2012).
In contrast, although Plaintiffs did not seek post-judgment interest in either the Complaint or their inquest submission, the award of post-judgment interest is mandatory pursuant to 28 U.S.C. § 1961, which applies to federal judgments entered in diversity cases. Cappiello v. ICD Publ'ns. Inc., 720 F.3d 109, 112 (2d Cir. 2013); see Bleecker v. Zetian Sys., Inc., No. 12 Civ. 2151(DLC), 2013 WL 5951162, at *2 (S.D.N.Y. Nov. 1, 2013) ("Although the Complaint did not seek relief in the form of post-judgment interest, such relief is mandatory under federal law.") (citing Westinghouse Credit Corp. v. D'Urso, 371 F.3d 96, 100 (2d Cir. 2004)). Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that post-judgment interest should be awarded at the statutory rate, starting on the date Your Honor issues judgment.
CONCLUSION
For the foregoing reasons, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiffs should be awarded damages on their second claim in the total amount of $1,435,325.67, plus post-judgment interest in accordance with 28 U.S.C. § 1961.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed. R. Civ. P. 6(d), or a total of seventeen (17) days, see Fed. R. Civ. P. 6(a), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of Court with extra copies delivered to the chambers of The Honorable Cathy Seibel at the United States Courthouse, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at the United States Courthouse, 300 Quarropas Street, White Plains, New York, 10601.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Seibel.
