I. LEO GLASSER, District Judge.
Plaintiff brought this action against Defendant on June 15, 2017. (ECF No. 1 ("Compl.")). Defendant was duly served with the summons and complaint on October 5, 2017 (ECF No. 19-8) but failed to respond to the complaint. On January 2, 2018, the Clerk of the Court issued a Certificate of Default. (ECF No. 18). Presently before the Court is Plaintiff's motion for default judgment pursuant to Fed. R. Civ. P. 55(b)(2). (ECF No. 19).
This is an action for breach of contract and account stated based on diversity jurisdiction. Plaintiff CA, Inc. d/b/a CA Technologies ("CA"), a Delaware corporation with its principal place of business in New York, is a "world-leading provider of information technology management software and solutions." (Compl. ¶¶ 3, 8). Defendant Network Solutions Provider, Inc. ("NSP") is incorporated in and has its principal place of business in California. (Compl. ¶ 4).
On or about January 29, 2016, CA entered into a written Service Provider Order Form (Compl. Ex. A) (the "Agreement"), by the terms of which it was agreed that CA would sell and NSP would purchase software products and services for a total price of $207,575.00. (Compl. ¶¶ 9-10; Compl. Ex. A, at 1). The Agreement is governed by New York law. (Compl. Ex. A, at 8). The purchase price was to be paid in three installments: $92,975.00 due January 29, 2016, $57,300.00 due January 15, 2017, and $57,300.00 due January 15, 2018. (Compl. Ex. A, at 1). CA alleges that it performed all of its obligations under the Agreement and that it billed NSP for a total of $150,275.00, which NSP never paid. (Compl. ¶¶ 12-14; Compl. Ex. B).
"A default is an admission of all well-pleaded allegations against the defaulting party." Natale v. County Ford Ltd., 2014 WL 4537501, at *3 (E.D.N.Y. Aug. 20, 2014) (alterations omitted) (quoting Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004)). "Additionally, a plaintiff is entitled to all reasonable inferences from the evidence it offers." Id. (alterations, citations and quotation marks omitted). "In considering a motion for default judgment, the court will treat the well-pleaded factual allegations of the complaint as true, and the court will then analyze those facts for their sufficiency to state a claim." United States Securities and Exchange Commission v. Coronati, 2016 WL 6462240, at *2 (E.D.N.Y. Oct. 14, 2016) (quoting Brown v. Gabbidon, 2007 WL 1423788, at *2 (S.D.N.Y. May 14, 2007)). However, "unlike allegations pertaining to liability, allegations of damages are not deemed admitted in the context of a default judgment and the damages sought are not automatically awarded." Id. (alterations omitted) (quoting Trustees of Empire State Carpenters Annuity, Apprenticeship, Labormanagement Cooperation, Pension and Welfare Funds v. Town & Country Wood Flooring LLC, 2013 WL 4807110, at *4 (E.D.N.Y. Sept. 9, 2013)). "The Court must examine whether the movant has provided adequate support for the requested relief . . . by an inquest hearing or on papers." Id. (internal citations omitted).
Accepting the well-pleaded allegations in the complaint as true and drawing all reasonable inferences in CA's favor, CA established that it performed under the terms of the Agreement (Compl. ¶ 13) and that NSP defaulted on its payment obligations thereunder. CA sent invoices to NSP in January and February 2016 totaling $92,975.00, which correspond to the first installment that NSP was required to pay. (Compl. Ex. A, at 1-2; Compl. Ex. B, at 1-3). In October 2016, CA sent an invoice to NSP for $57,300, corresponding to the second installment. (Compl. Ex. A, at 1; Compl. Ex. B, at 4). Because CA alleges that these were never paid (Compl. ¶¶ 12, 14), it has met its burden with respect to liability for breach of contract. See In re R. Hoe & Co., Inc., 508 F.2d 1126, 1129 (2d Cir. 1974) ("[O]rdinarily an unjustified failure to perform all or any part of what is promised in a contract . . . is a breach for which the aggrieved party is entitled to compensatory damages").
In addition, CA has established liability for account stated. "[U]nder New York law an `account stated' refers to a promise by a debtor to pay his creditor a stated sum of money that the parties had agreed upon as the amount due." Peace Mark (Holdings) Ltd. v. International Watch Group, Inc., 2010 WL 986559, at *3 (E.D.N.Y. Feb. 1, 2010), report and recommendation adopted, 2010 WL 1005780 (E.D.N.Y. Mar. 17, 2010). Under this theory, "the promise (either express or implied) must be founded upon previous transactions creating the relationship of debtor and creditor." Id. "The transactional history may be evidenced by invoices submitted to the defendant on a regular basis, such as those commonly included with the delivery of goods to a purchaser." Id. Here, CA's invoices "serve to establish a running account" with NSP for the software products. Id. at *4. "As [NSP] has not responded to [CA]'s complaint, nor appeared in this action, no objections to the account or the invoices submitted have been proffered. Thus, plaintiff has [set] forth a prima facie case for an account stated . . . ." Id.
With respect to damages, the sworn affidavit of Philip Blum, a Vice President of CA, and copies of the invoices submitted therewith are sufficient to establish that the unpaid amount was $150,275.00. (ECF Nos. 19-1 ("Blum Aff.") ¶¶ 5-8, 19-5). See Natale, 2014 WL 4537501, at *4 ("It is proper for the Court to `rely on detailed affidavits or documentary evidence . . . to evaluate the proposed sum'") (quoting Fustok v. Conticommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)); id. ("Here, plaintiffs have submitted affidavits from counsel . . ., along with documentary support for the amounts sought. Defendants have submitted no papers. Accordingly, a hearing on the issue of damages is not necessary"). Therefore, CA is entitled to damages in the amount of $150,275.00.
CA also seeks pre-judgment interest. Where the court's jurisdiction is premised on diversity, an award of pre-judgment interest is governed by state law. See Schipani v. McLeod, 541 F.3d 158, 164 (2d Cir. 2008). Under New York law, the applicable statutory rate of prejudgment interest is 9% per annum. N.Y. Civ. Prac. L. & R. §§ 5001(a), 5004.
In this case, it is unclear when CA's respective causes of action accrued under the terms of the Agreement. Blum affirms in his sworn affidavit that the Agreement's payment terms were "net 45," meaning that CA's cause of action with respect to a particular payment would accrue if NSP failed to make the payment within 45 days after the due date. (Blum Aff. ¶ 7). Hence, according to Blum, CA's cause of action with respect to the first missed payments totaling $92,975.00 accrued on March 14, 2016 (45 days after the January 29, 2016 due date), and its cause of action with respect to the second missed payment of $57,300 accrued on March 1, 2017 (45 days after the January 15, 2017 due date). (Blum Aff. ¶ 7). However, this characterization appears to be inconsistent with one of the invoices that CA sent as part of the first installment, which reads: "
Accordingly, total pre-judgment interest shall be $32,228.99.
CA seeks post-judgment interest pursuant to 28 U.S.C. § 1961. An award of postjudgment interest is mandatory on awards in civil cases. See Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996). Accordingly, Plaintiff will be awarded post-judgment interest on its monetary award calculated in accordance with 28 U.S.C. § 1961.
The Federal Rules of Civil Procedure provide that, "[u]nless a federal statute, th[e] [R]ules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). The burden is on the prevailing party to adequately document and itemize the costs requested. See Local 363, United Electrical Workers of America, International Union of Journeymen and Allied Trades v. Laser Lite Electrical, Inc., 2017 WL 9939041, at *6 (E.D.N.Y. Nov. 9, 2017). Here, CA's Bill of Costs indicates that CA paid a $400.00 court filing fee and $385.00 in fees for service of the summons and complaint. (ECF No. 19-11). Accordingly, costs will be awarded in the amount of $785.00.
For the reasons set forth above, CA's motion for default judgment is
SO ORDERED.