Opinion
19-CV-5083 (LDH) (RML)
03-31-2022
EXP GROUP LLC, Plaintiff, v. CFK PRODUCE CORP., and KOJI UENO, Defendant.
NOT FOR PUBLICATION
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
LASHANN DEARCY HALL, UNITED STATES DISTRICT JUDGE:
On March 24, 2021, this Court adopted in full Magistrate Judge Robert M. Levy's report and recommendation (the “February 2021 R&R”), recommending that that EXP Group LLC's (“Plaintiff”) motion for default judgment be granted in part and denied in part. (February 2021 R&R, ECF No. 47.) Specifically, the Court ordered that default judgment be entered against CKF Produce Corporation and Koji Ueno (together “Defendants”) with respect to liability, and that the determination as to damages, attorney's fees, and costs be deferred pending liability and relief being addressed as to Katheryn De La Rosa. By stipulation and order dated March 12, 2021, De La Rosa was dismissed from this action. Accordingly, by order dated March 24, 2021, the Court referred the outstanding determination of damages, attorney's fees, and costs to Judge Levy for report and recommendation. On May 18, 2021, Judge Levy issued his report and recommendation (the “May 2021 R&R”), recommending that plaintiff's requested damages be awarded in part. (May 2021 R&R, ECF No. 55.) Specifically, Judge Levy recommends that Plaintiff be awarded $425,129.50 in unpaid principal, $45,495.78 in pre-judgment interest, post-judgment interest, and $14,315 in attorney's fees., and that Plaintiff not be awarded the requested sum for costs. (Id.) No. party objected.
STANDARD OF REVIEW
When deciding whether to adopt a report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The Court conducts a de novo review of those portions of a report and recommendation to which a party submits a timely objection. Id. “To accept those portions of the report to which no timely objection has been made, ‘the district court need only satisfy itself that there is no clear error on the face of the record.'” Estate of Ellington ex rel. Ellington v. Harbrew Imports Ltd., 812 F.Supp.2d 186, 189 (E.D.N.Y. 2011) (quoting Urena v. New York, 160 F.Supp.2d 606, 609-10 (S.D.N.Y. 2001)).
DISCUSSION
The court assumes familiarity with the facts of this action and will not reproduce them here. The Court has reviewed the chart upon with Judge Levy based his damages calculations as well as the underlying invoices submitted by Plaintiff in support of its damages calculations. (May 2021 R&R at 6-7; (Pl.'s Mem. at 9, ECF No. 32-10; Calculations of Interest Chart, attached as Ex. E to the Gentile Decl., Dkt. No. 32-8; Invoices, annexed as Ex. A to the Serafino Decl., Dkt. Nos. 32-4, 32-5, 32-6.) The Court finds error in the amount of principal calculated in the May 2021 R&R and the interest owed on the unpaid balance. Specifically, the Court notes that the invoice amounts total $426,533.50, not $425,129.50. Further, with respect to order numbers 227914, 228253, and 228286, the Court notes that the number of days between the date the invoices became past due and March 1, 2021, is incorrect in the May 2021 R&R. The Court has produced below a corrected chart of pre-judgment interest damages.
Invoice Date
Order Number
Payment Due Date
Invoice Amount
Number of Days
Per Diem Interest
Interest Owed
6/29/2019
218126
7/9/2019
$2,376.00
235
$1.17
$275.36
7/1/2019
218157
7/11/2019
$12,009.00
233
$5.92
$1,379.88
7/1/2019
218249
7/11/2019
$1,872.00
233
$0.92
$215.10
7/2/2019
218621
7/12/2019
$12,530.00
232
$6.18
$1,433.57
7/3/2019
219029
7/13/2019
$13,652.00
231
$6.73
$1,555.21
7/5/2019
219440
7/15/2019
$15,940.00
229
$7.86
$1,800.13
7/6/2019
219781
7/16/2019
$17,159.50
228
$8.46
$1,929.39
7/6/2019
219784
7/16/2019
$2,688.00
228
$1.33
$302.23
7/8/2019
220174
7/18/2019
$18,095.00
226
$8.92
$2,016.72
7/8/2019
220177
7/18/2019
$2,250.00
226
$1.11
$250.77
7/9/2019
220564
7/19/2019
$19,867.00
225
$9.80
$2,204.42
7/10/2019
220928
7/20/2019
$2,592.00
224
$1.28
$286.33
7/10/2019
220960
7/20/2019
$11,323.00
224
$5.58
$1,250.80
7/11/2019
221430
7/21/2019
$13,861.50
223
$6.84
$1,524.39
7/11/2019
221435
7/21/2019
$1,296.00
223
$0.64
$142.52
7/11/2019
221473
7/21/2019
$882.00
223
$0.43
$97.00
7/12/2019
221927
7/22/2019
$9,642.00
222
$4.75
$1,055.60
7/13/2019
222305
7/23/2019
$20,695.00
221
$10.21
$2,255.47
7/15/2019
222643
7/25/2019
$11,428.00
219
$5.64
$1,234.22
7/16/2019
222943
7/26/2019
$12,010.00
218
$5.92
$1,291.16
7/17/2019
223469
7/27/2019
$15,362.00
217
$7.58
$1,643.94
7/18/2019
224022
7/28/2019
$14,077.00
216
$6.94
$1,499.49
7/19/2019
224394
7/29/2019
$13,101.00
215
$6.46
$1,389.06
7/20/2019
224878
7/30/2019
$14,107.25
214
$6.96
$1,488.80
7/22/2019
225248
8/1/2019
$15,109.00
212
$7.45
$1,579.61
7/23/2019
225625
8/2/2019
$17,537.50
211
$8.65
$1,824.86
7/24/2019
226088
8/3/2019
$10,623.25
210
$5.24
$1,100.16
7/25/2019
226641
8/4/2019
$13,552.00
209
$6.68
$1,396.78
7/26/2019
227085
8/5/2019
$5,978.00
208
$2.95
$613.20
7/27/2019
227551
8/6/2019
$12,068.00
207
$5.95
$1,231.93
7/29/2019
227914
8/8/2019
$14,225.00
205
$7.02
$1,438.09
7/30/2019
228253
8/9/2019
$7,930.00
204
$3.91
$797.78
7/30/2019
228286
8/9/2019
$1,824.00
204
$0.90
$183.50
7/31/2019
228651
8/10/2019
$12,154.50
203
$5.99
$1,216.78
8/1/2019
229179
8/11/2019
$12,521.00
202
$6.17
$1,247.30
8/2/2019
229741
8/12/2019
$10,390.00
201
$5.12
$1,029.89
8/3/2019
230161
8/13/2019
$9,968.00
200
$4.92
$983.15
8/5/2019
230650
8/15/2019
$13,734.00
198
$6.77
$1,341.04
8/6/2019
231017
8/16/2019
$10,104.00
197
$4.98
$981.61
Total = $426,533.50
Total = $45,487.24
Accordingly, the Court awards Plaintiff $426,533.50 in principal and $45,487.24 in pre-judgement interest. The Court finds no error in Judge Levy's May 2021 R&R with respect to attorney's fees, post-judgment interest, and costs. Consistent with Judge Levy's the Court awards Plaintiff $14,315 in attorney's fees, post-judgment interest, and declines awarding Plaintiff its requested costs.
CONCLUSION
For the foregoing reasons, Judge Levy's May 2021 R&R is ADOPTED IN PART as the opinion of this Court. Plaintiff is awarded $426,533.50 in principal, $45,487.24 in pre-judgement interest, $14,315 in attorney's fees, and post-judgment interest as prescribed by 28 U.S.C. § 1961. Plaintiff's requests for costs is DENIED. Plaintiff is directed to serve a copy of this Memorandum and Order on the defaulting defendants by first-class mail, and to file proof of service with the Court. Further, the Clerk of Court is respectfully directed to enter judgment consistent with this Memorandum and Order and close this case.
SO ORDERED.