DEBORAH A. BATTS, District Judge.
This matter is before the Court upon the July 20, 2012 Report and Recommendation of United States Magistrate Judge Henry
Pursuant to 28 U.S.C. § 636(b)(1)(C), "[w]ithin fourteen days after being served with a copy [of a Magistrate Judge's Report and Recommendation], any party may serve and file written objections to such proposed findings and recommendations..." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(2). The district court may adopt those portions of the report to which no timely objection has been made, so long as there is no clear error on the face of the record. See 28 U.S.C. § 636(b)(1)(A); Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y.2003). To date, no objections to said Report and Recommendation have been filed.
Having reviewed the Report and Recommendation and finding no clear error on the face of the record, it is hereby ORDERED AND ADJUDGED as follows:
1. The Report and Recommendation of United States Magistrate Judge Henry B. Pitman dated July 20, 2012 be and the same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in its entirety;
2. Pursuant to Magistrate Judge Pitman's recommendation, Default Judgment in the amount of $500,000.00 is hereby entered against Raman International only as to Plaintiff's conversion claim; Default Judgment only is hereby entered as to Plaintiff's breach of contract claim; Summary Judgment is hereby granted against Defendant Yosupov only as to Plaintiff's conversion claim; and Judgment is hereby entered against Defendant Yosupov in the amount of $602,760.42.
SO ORDERED.
PITMAN, United States Magistrate Judge:
TO THE HONORABLE DEBORAH A. BATTS, United States District Judge,
This is an action for breach of contract, conversion and fraud arising out of a putative agreement among plaintiff Pacific M. International Corp. ("Pacific Int'l"), defendant Raman International Gems, Ltd. ("Raman Int'l") and defendant Raman Yosupov concerning a 12.24 carat diamond (the "Diamond").
By notices of motion dated September 30, 2011 (Docket Items 12, 13 and 15), plaintiff moves for (1) the entry of a default judgment against Raman Int'l on its breach of contract, conversion and fraud claims and (2) summary judgment against Yosupov on the same claims. Raman Int'l has neither retained counsel in this action nor responded to the Complaint. Yosupov has filed an Answer to the Complaint (Docket Item 6), but has not submitted any opposition to plaintiff's motion for summary judgment.
For the reasons set forth below, I respectfully recommend that (1) plaintiffs motion for a default judgment against Raman Int'l be granted in part and denied in part and (2) plaintiffs motion for summary
Plaintiffs complaint alleges the following facts. Plaintiff, a wholesale seller of diamonds, is a California corporation with its principal place of business located in Los Angeles, California (Complaint, dated Dec. 10, 2010 ("Compl.") (Docket Item 1), ¶ 2). Plaintiff alleges that it owns the Diamond at issue in this action, i.e., a "12.24 ct. diamond (grade: I-VVS2) with GIA Report No. 14174122" (Compl. ¶ 7).
Yosupov, a New York resident, is the owner and principal of Raman Int'l, a New York company with its principal place of business also located in New York, New York (Compl. ¶¶ 3-4). Raman Int'l is a wholesale and retail seller of diamonds and jewelry (Compl. ¶ 3).
In July 2009, Raman Int'l and Yosupov (collectively, the "Defendants") allegedly contacted plaintiff about the Diamond (Compl. ¶ 8). The Defendants informed plaintiff that they had a customer who was interested in purchasing the Diamond; however, the customer wanted to view the Diamond in New York (Compl. ¶ 8). On or about July 29, 2009, in order to accommodate this request, plaintiff shipped the Diamond to the Defendants "pursuant to a Memorandum that memorialized the transaction, described the Diamond, and indicated its value at $525,320.00" (Compl. ¶ 9). The Memorandum also "made clear that the Diamond remained the property of [plaintiff] and `shall be returned on demand in full in its original form'" (Compl. ¶ 10). Plaintiff alleges that it is "quite common" within the diamond trade for a dealer to consign a diamond to another dealer in this manner and that the Defendants "accepted and agreed to the terms of the Memorandum" (Compl. 11119-10).
Finally, plaintiff alleges that (1) despite repeated demands, the Defendants have not returned the Diamond and (2) the Defendants' statements in July 2009 that they (a) "wanted the Diamond to show to a Russian diplomat customer who was interested in purchasing the Diamond" and (b) "were willing and able to return the Diamond to [plaintiff] immediately upon demand" were false and misleading and made for the purpose of inducing plaintiff to lend the Diamond to the Defendants (Compl. ¶¶ 11, 24-25).
Based on the above facts, plaintiff seeks: (1) an Order of the Court directing the Defendants to immediately return the Diamond to plaintiff; (2) compensatory damages in an amount to be determined; (3) punitive damages in the amount of $500,000.00 and (4) legal fees and costs incurred in connection with this action (Compl. at 5).
Plaintiff has submitted a statement pursuant to Local Civil Rule 56.1 and contends that the facts contained therein have been established either through discovery or by the declaration that it has submitted in connection with the pending motion for summary judgment (Docket Items 16 and 17). However, because both plaintiffs Rule 56.1 statement and corresponding declaration primarily set forth an abbreviated version of the facts alleged in the Complaint, I do not recite them again
First, plaintiff contends that Yosupov concedes the following facts in his Answer: (1) he received the Diamond from plaintiff; (2) plaintiff requested that he return the Diamond and (3) he has not returned the Diamond (Declaration of Issac Musighi, dated Sept. 30, 2011 ("Musighi Decl.") (Docket Item 17), ¶ 7, citing Ex. C to Musighi Decl.).
Second, plaintiff contends that, during a pre-trial conference which I held on March 24, 2011 (the "March 24 Conference"), "Yosupov told [this] Court that he was responsible for the diamond, but that he had given it to a customer who lives outside the United States and has not been able to get [it] back ...."
Finally, plaintiff contends that "[t]he agreed upon value of the diamond is $43,000 per carat weight, for a total value of $526,320.00"
Plaintiff filed its summary judgment motion on September 30, 2011 and served Yosupov with the motion and the notice to pro se litigants required by Local Civil Rule 56.2. In pertinent part, this notice informed Yosupov that:
(Ex. A to Docket Item 15). Despite having been advised of what he must do to respond to plaintiffs motion, Yosupov has not submitted any opposition papers. Accordingly, I consider plaintiffs motion for summary judgment to be ripe for decision.
The Court of Appeals for the Second Circuit succinctly set forth the procedural rules applicable to the entry of a default judgment in City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128-29 (2d Cir.2011):
Moreover, "`[b]ecause defaults are generally disfavored and are reserved for rare occasions, when doubt exists as to whether a default should be granted ..., the doubt should be resolved in favor of the defaulting party.'" In re Suprema Specialties, Inc., 330 B.R. 40, 44-45 (S.D.N.Y.2005) (Lynch, then D.J., now Cir. J.), quoting Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir.1993); see also Stein v. Valentine & Kebartas, Inc., supra, 2012 WL 1416924 at *2; Coach, Inc. v. O'Brien, supra, 2011 WL 3462317 at *2; O'Callaghan v. Sifre, supra, 242 F.R.D. at 73.
Notwithstanding this, however, "[t]he Court has significant discretion to consider a number of factors in deciding whether to grant a default judgment, including (1) whether the grounds for default are clearly established; (2) whether the claims were pleaded in the Complaint thereby placing the defendant on notice,...; and (3) the amount of money potentially involved-the more money involved, the less justification for entering the default judgment." Stein v. Valentine & Kebartas, Inc., supra, 2012 WL 1416924 at *2, citing Fed.R.Civ.P. 54(c); King v. STL Consulting LLC, 05 CV 2719, 2006 WL 3335115 at *4-*5 (E.D.N.Y. Oct. 3, 2006) and Hirsch v. Innovation Int'l, Inc., 91 Civ. 4130(MJL), 1992 WL 316143 at *2 (S.D.N.Y. Oct. 19, 1992) (Lowe, D.J.).
In addition, "the Court may consider whether material issues of fact remain, whether the facts alleged in the complaint state a valid cause of action, whether plaintiff has been substantially prejudiced by the delay involved, and whether the default judgment might have a harsh effect on the defendant." Stein v. Valentine & Kebartas, Inc., supra, 2012 WL 1416924 at *2, citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65-66 (2d Cir.1981).
Finally, "[a] default judgment is inappropriate where a plaintiff has failed to state a cause of action against the allegedly defaulting defendant, regardless of whether the defendant filed a prompt response, or any response at all." Young-Flynn
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir.2004); accord Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir.2005); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.1994).
"Material facts are those which `might affect the outcome of the suit under the governing law,' and a dispute is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir.2007), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007). "`[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented[.]'" Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir.2007), quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).
Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 253-54 (2d Cir.2002) (citations omitted); see also Jeffreys v. City of New York, supra, 426 F.3d at 553 ("`Assessments of credibility and choices between conflicting versions of the events are matters
The Second Circuit has also explained that "in determining whether the moving party has met [its] burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion." Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003). Finally, even where, as here, a summary judgment motion is unopposed, the Court must examine the record to determine whether a genuine issue of fact exists for trial; a summary judgment motion cannot be granted on default. Vermont Teddy Bear Co. v. 1-800 Beargram Co., supra, 373 F.3d at 244.
As explained in greater detail below, because Yosupov is the owner and principal of Raman Int'l, the appropriateness of a default judgment against the corporation is closely related to the outcome of plaintiff's motion for summary judgment against Yosupov individually. Accordingly, I shall first address plaintiff's motion for summary judgment.
"`To form a valid contract under New York law, there must be an offer, acceptance, consideration, mutual assent and intent to be bound.'" Leibowitz v. Cornell Univ., 584 F.3d 487, 507 (2d Cir. 2009), quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir.2004). Establishing "a breach of contract claim requires proof of (1) an agreement, (2) adequate performance by the plaintiff, (3) breach by the defendant, and (4) damages." Fischer & Mandell, LLP v. Citibank, N.A., 632 F.3d 793, 799 (2d Cir. 2011); citing First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir.1998) and Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir.1996).
The predicate for plaintiff's breach of contract claim is the Memorandum, which plaintiff has attached as Exhibit B to the Musighi Declaration. However, the copy of the Memorandum that plaintiff has submitted is, for the most part, not legible.
Accordingly, on the basis of the foregoing, I recommend that plaintiffs motion for summary judgment as to Yosupov on plaintiffs contract claim be denied without prejudice to renewal.
The Second Circuit succinctly set forth the standards applicable to a claim for conversion under New York law in Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d Cir.2006):
See also Cruz v. TD Bank, N.A., 855 F.Supp.2d 157, 174 (S.D.N.Y.2012) (Castel, D.J.); Goodman v. Port Auth. of New York and New Jersey, 850 F.Supp.2d 363, 376-77 (S.D.N.Y.2012) (Sweet, D.J.); Soroof Trading Dev. Co., Ltd. v. GE Fuel Sys., LLC, 842 F.Supp.2d 502, 513-14 (S.D.N.Y.2012) (Swain, D.J.).
"`Two key elements of conversion are (1) plaintiffs possessory right or interest in the property and (2) defendant's dominion over the property or interference with it, in derogation of plaintiffs [sic] rights.'" Cruz v. TD Bank, N.A., supra, 855 F.Supp.2d at 174, quoting Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49-50, 827 N.Y.S.2d 96, 100, 860 N.E.2d 713, 717 (2006). Additionally, "[a] plaintiff alleging conversion need not show fault by the defendant." Cruz v. TD Bank, N.A., supra, 2012 WL 694267 at *11, citing LoPresti v. Terwilliger, 126 F.3d 34, 42 (2d Cir.1997).
"`Where the original possession is lawful, a conversion does not occur until the defendant refuses to return the property after demand or until he sooner disposes of the property.'" Thyroff v. Nationwide Mut. Ins. Co., 360 Fed.Appx. 179, 180 (2d Cir.2010), quoting Seanto Exps. v. United Arab Agencies, 137 F.Supp.2d 445, 451 (S.D.N.Y.2001) (Motley, D.J.); see also Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993).
Finally, "`[t]o state a claim of conversion, the plaintiff must allege that (1) the party charged has acted without authorization, and (2) exercised dominion or a right of ownership over property belonging to another[,] (3) the rightful owner makes a demand for the property, and (4) the demand for the return is refused.'" Soroof Trading Dev. Co., Ltd. v. GE Fuel Sys., LLC, supra, 842 F.Supp.2d at 514, quoting Lefkowitz v. Bank of New York, 676 F.Supp.2d 229, 251 (S.D.N.Y.2009) (Marrero, D.J. adopting the Report and Recommendation of Dolinger, M.J.); see also Goodman v. Port Auth. of New York and New Jersey, supra, 850 F.Supp.2d at 376; Seanto Exps. v. United Arab Agencies, supra, 137 F.Supp.2d at 451.
Summary judgment against Yosupov on plaintiffs conversion claim is appropriate. There is no genuine dispute with respect to the following material facts, which Yosupov has either admitted in his Answer or on the record during the March 24 Conference: (1) plaintiff shipped the Diamond to Yosupov at Raman Int'l on or
Accordingly, on the basis of the foregoing, I recommend that plaintiff's motion for summary judgment be granted as to its conversion claim.
Under New York law, a claim for fraud requires proof that "`(1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result of such reliance.'" Wall v. CSX Transp., Inc., 471 F.3d 410, 415-16 (2d Cir.2006), quoting Bridgestone/Firestone Inc. v. Recovery Credit Servs. Inc., 98 F.3d 13, 19 (2d Cir.1996).
However, a claim for fraud cannot be maintained where it "arises out of the same facts as a breach of contract claim with the sole additional allegation that the defendant never intended to fulfill its express contractual obligations." PI, Inc. v. Quality Prods., Inc., 907 F.Supp. 752, 761 (S.D.N.Y.1995) (Koeltl, D.J.); see also Rojas v. Don King Prod., Inc., 11 Civ. 8468(KBF), 2012 WL 760336 at *4 (S.D.N.Y. Mar. 6, 2012) (Forrest, D.J.); Sudul v. Computer Outsourcing Servs., 868 F.Supp. 59, 62 (S.D.N.Y.1994) (Martin, D.J.). Rather, "under New York law, parallel fraud and contract claims may be brought only if the plaintiff (1) demonstrates a legal duty separate from the duty to perform under the contract; (2) points to a fraudulent misrepresentation that is collateral or extraneous to the contract; or (3) seeks special damages that are unrecoverable as contract damages." Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 183 (2d Cir.2007), citing Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., supra, 98 F.3d at 20; see also Rojas v. Don King Prod., Inc., supra, 2012 WL 760336 at *4.
Accordingly, on the basis of the foregoing, I recommend that plaintiffs motion for summary judgment be denied as to its fraud claim.
Because Raman Int'l is a corporation, it must be represented by counsel. See Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-03, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); Grace v. Bank Leumi Trust Co. of New York, 443 F.3d 180, 192 (2d Cir.2006); Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 568 (2d Cir.2000).
Here, plaintiff served Raman Int'l with the Summons and Complaint on December 21, 2010 by delivering each document to the New York Secretary of State (Docket Item 5; see also Declaration for Judgement [sic] By Default, dated Sept. 30, 2011 ("Decl. for Default J.") (Docket Item 14), ¶ 5, citing Exs. A and B to Decl. for Default J.). It is undisputed that Raman Int'l has not retained counsel in this action despite being directed to do so by Judge Batts on February 7, 2011 and by myself on March 28, 2011 (Docket Item 7 at 1-2; Docket Item 11 at ¶ 3). Plaintiff seeks a default judgment against Raman Int'l on its breach of contract, conversion and fraud claims based on its failure to comply with these two Orders.
With respect to plaintiff's claim for fraud, a default judgment should not be entered because plaintiff fails to state a claim. Plaintiffs fraud claim is based on the theory that the Defendants misrepresented their intent to perform the contract. As explained above at pages 20-22, such allegations do not state a claim for fraud. See Stein v. Valentine & Kebartas, Inc., supra, 2012 WL 1416924 at *2 (noting that, in determining whether a default judgment is appropriate, a court may consider whether the facts alleged in the complaint state a valid claim); see also Young-Flynn v. Wright, supra, 2007 WL 241332 at *24; Kee v. Hasty, supra, 2004 WL 807071 at *4; CPF Premium Funding Inc. v. Ferrarini, supra, 1997 WL 158361 at *14. Accordingly, plaintiffs motion for a default judgment as to its claim for fraud should be denied.
Default judgment is appropriate, however, as to plaintiff's claim for conversion. Plaintiffs conversion claim against Raman Int'l is based on the same facts as its conversion claim against Yosupov. Thus, for the same reasons already discussed at pages 17-20, the elements of conversion have also been established against Raman Int'l. Accordingly, plaintiffs motion for a default judgment as to its claim for conversion should be granted.
Finally, with respect to plaintiffs claim for breach of contract, in order to prevent
Accord Gesualdi v. MMK Trucking, Inc., CV 09-1484(SLT)(AKT), 2010 WL 3619569 at *4-*5 (E.D.N.Y. Aug. 24, 2010) (Report and Recommendation), adopted at, 2010 WL 3619719 (E.D.N.Y. Sept. 9, 2010); Montcalm Publ'g Corp. v. Ryan, 807 F.Supp. 975, 978 (S.D.N.Y.1992) (Motley, D.J.).
Here, because I recommend that summary judgment be denied as to plaintiffs breach of contract claim against Yosupov (i.e., the non-defaulting defendant), a default judgment should not be entered against Raman Int'l (i.e., the defaulting defendant) on the same claim. If such a judgment were entered and Yosupov then prevailed at trial on the merits, this may result in inconsistent judgments as noted above.
Accordingly, based on the foregoing, plaintiffs motion as to its breach of contract claim should be granted only to the extent of noting Raman Int'l's default and deeming its liability established.
As already noted, in the ad damnum clause of the Complaint, plaintiff seeks judgment: (1) "Ordering Defendants to immediately return the Diamond to [plaintiff];" (2) "Awarding [plaintiff] its actual compensatory damages in an amount to be determined at trial;" (3) "Awarding [plaintiff] punitive damages in the amount of $500,000.00" and (4) "Awarding [plaintiff] its legal fees and costs [incurred in connection with] this action" (Compl. at 5). However, in plaintiff's motions for default judgment and summary judgment, plaintiff seeks to recover only (1) the value of the Diamond and (2) prejudgment interest on that amount at a rate of nine percent beginning on July 29, 2009, i.e., the date upon which the Diamond was shipped to the Defendants (see Decl. for Default J. ¶ 10; Rule 56.1 Statement ¶ 16; Musighi Decl. ¶ 11). Accordingly, with respect to (1) the entry of a default judgment against Raman Int'l for conversion of the Diamond and (2) summary judgment against Yosupov for the same, I address the relief sought in plaintiff's motions.
A plaintiff who prevails on a claim for conversion "may recover the value of the property at the time and place of conversion, plus interest." See Edidin v. Uptown Gallery, Inc., 09 Civ. 7829(DLC)(GWG), 2010 WL 2194817 at *1 (S.D.N.Y. June 1, 2010) (Cote, D.J.), citing Bank of New York v. Amoco Oil Co., 35 F.3d 643, 657, 659, 662 (2d Cir.1994) and Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326, 402 N.E.2d 122, 125, 425 N.Y.S.2d 783, 786 (1980). Specifically, "[p]rejudgment interest on damages awarded because of conversion is recoverable under N.Y. CPLR § 5001(a)."
As an initial matter, with respect to plaintiff's conversion claim against Raman Int'l, plaintiff is not entitled to recover prejudgment interest. Plaintiff neither requested prejudgment interest in the body of the Complaint nor in the ad damnum clause.
Silge v. Merz, 510 F.3d 157, 159 (2d Cir. 2007), quoting 10 Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice & Procedure § 2663 (3d ed.1998) (footnote omitted). Thus, based on the foregoing, plaintiff's application for prejudgment interest against Raman Int'l should be denied. See Silge v. Merz, supra, 510 F.3d at 158 ("This case calls upon us to decide whether the appellant, after securing a default judgment, should have been permitted to recover on a claim for prejudgment interest that was not pleaded in the complaint or reflected in its demand clause .... we hold that the district court correctly applied Rule 54(c) ... in not allowing such recovery ...."); see also Guanghong Int'l (HK) Ltd. v. Ultimate Fin. Solutions LLC, 11 Civ. 4019(RMB)(KNF), 2012 WL 1228085 at *6 (S.D.N.Y. Mar. 26, 2012) (Fox, M.J.) (Report and Recommendation), adopted at, 2012 WL 2402902 (S.D.N.Y. June 26, 2012) (Berman, D.J.); Leisure Direct, Inc. v. Glendale Capital, LLC, 05-CV-4473 (KAM)(JO), 2010 WL 3782049 at *5 (E.D.N.Y. July 27, 2010) (Report and Recommendation), adopted at, 2010 WL 3782042 (E.D.N.Y. Sept. 20, 2010); RLI Ins. Co. v. King Sha Grp., 598 F.Supp.2d 438, 446 (S.D.N.Y.2009) (Kaplan, D.J.).
In addition, plaintiff did not specify the exact dollar amount that it was seeking for the Diamond's conversion in the ad damnum clause. Instead, plaintiff requested only "its actual compensatory damages in an amount to be determined at trial" (Compl. at 5). In the body of the Complaint, plaintiff alleges the following with respect to the value of the Diamond and its damages:
Notwithstanding the lack of specificity in the Complaint as to the exact amount of damages sought for the Diamond's conversion, I find that it is appropriate to enter a default judgment in the amount of $500,000.00 against Raman Int'l. As the Second Circuit has explained:
Silge v. Merz, supra, 510 F.3d at 161 (emphasis in original). Here, as to the $500,000.00 figure, the purposes of Rule 54(c) are satisfied. First, the Complaint is a short document, spanning only four and a half pages. Cf. Silge v. Merz, supra, 510 F.3d at 160 ("Because complaints can be long and intricate, a lawyer is often required to help a defendant gain a full understanding of the plaintiff's claims. By limiting damages to what is specified in the 'demand for judgment,' the rule ensures that a defendant who is considering default can look at the damages clause, satisfy himself that he is willing to suffer judgment in that amount and then default without the need to hire a lawyer."). Second, it is clear from the face of the Complaint that plaintiff (1) alleged a monetary loss of not less than $500,000.00 and (2) was seeking actual compensatory damages in connection with its claims against the Defendants.
Accordingly, on the basis of the foregoing, I conclude that a default judgment in the amount of $500,000.00 should be entered against Raman Int'l for conversion of the Diamond.
Because I recommend that summary judgment be granted in favor of plaintiff as to its conversion claim against Yosupov, plaintiff is entitled to recover (1) the value of the Diamond at the time and place of its conversion and (2) interest on that amount.
Plaintiff is also entitled to recover prejudgment interest from the date of the Diamond's conversion. See N.Y. C.P.L.R. §§ 5001(a)-(b), 5004. The yearly interest on an award of $526,320.00 at a rate of 9% per annum is $47,368.80 and the daily interest is $129.78. However, because plaintiff does not specify the date on which the conversion occurred, I recommend that prejudgment interest be entered beginning on the date that plaintiff commenced this action,
Accordingly, on the basis of the foregoing, plaintiff is entitled to recover from Yosupov a total of $602,760.42. This figure is comprised of: (1) $526,320.00, which represents the value of the Diamond and (2) $76,440.42, which represents pre-judgment interest at a rate of nine percent on a simple basis beginning on December 10, 2010.
For all the foregoing reasons, I respectfully recommend that (1) plaintiffs motion for a default judgment against Raman Int'l be granted in part and denied in part and (2) plaintiffs motion for summary judgment against Yosupov be granted in part and denied in part. Specifically, I recommend that a default judgment in the amount of $500,000.00 be entered against Raman Int'l only as to plaintiffs conversion claim and a default entered only as to plaintiff's breach of contract claim. I further recommend that summary judgment be granted against Yosupov only as to plaintiff's conversion claim and that judgment be entered against him in the amount of $602,760.42. If adopted, this Report and Recommendation will close Docket Items 12, 13 and 15 in 10 Civ. 9250.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Deborah A. Batts, United States District Judge, 500 Pearl Street, Room 2510, and to the Chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Batts. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS
(Docket Item 11). Yosupov, however, has not complied with this Order (Musighi Decl. 1111 9-10).
