Opinion
19-CV-2012 (MKV) (KNF)
10-13-2020
MATTHEW MCDERMOTT, Plaintiff, v. BIERMAN APPAREL CORP. Defendant.
HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE
Matthew McDermott commenced this action against Bierman Apparel Corp. asserting violations of Section 501 of the Copyright Act and the Digital Millennium Copyright Act, 17 U.S.C. § 1202(b). On May 26, 2020, the Clerk's Certificate of Default was entered against the defendant. The plaintiff made a motion for judgment by default, which was referred to the undersigned. The plaintiff filed a: (1) “Notice of Motion” seeking an order granting his motion for judgment by default against the defendant “in the amount of $30,000.00 in statutory damages under 17 U.S.C. § 504(c); $10,000 in statutory damages under 17 U.S.C. § 1202(b); $1,912.50 in attorneys' fees and $440.00 in costs under 17 U.S.C. § 505, ” Docket Entry No. 20; (2) “Declaration of Richard Liebowitz” with exhibits, Docket entry No. 21; (3) “Statement of Damages, ” Docket Entry No. 22; and (4) “[Proposed] Default Judgment, ” Docket Entry No. 23.
Local Civil Rule 7.1(a) of this court provides:
Except for letter-motions as permitted by Local Rule 7.1(d) or as otherwise permitted by the Court, all motions shall include the following motion papers: (1) A notice of motion, or an order to show cause signed by the Court, which shall specify the applicable rules or statutes pursuant to which the motion is brought, and shall specify the relief sought by the motion; (2) A memorandum of law, setting forth the cases and other authorities relied upon in support of the motion, and
divided, under appropriate headings, into as many parts as there are issues to be determined; and (3) Supporting affidavits and exhibits thereto containing any factual information and portions of the record necessary for the decision of the motion.
The plaintiff's motion is procedurally deficient because it does not comply with Local Civil Rule 7.1(a) of this court, as the plaintiff failed to submit a memorandum of law in support of the motion. In addition, the declaration submitted by the plaintiff's counsel, Richard Liebowitz (“Liebowitz”), contains impermissible conclusory assertions and legal arguments, including a section styled “Legal Authority For Why An Inquest Would be Unnecessary.” The plaintiff's “Statement of Damages” is not accompanied by any affidavit explaining its content, although it appears to duplicate conclusory assertions and legal arguments contained improperly in Liebowitz's declaration. The plaintiff asserts in the “Statement of Damages” that courts “routinely award” the amounts of statutory damages that he seeks without providing any explanation or evidence establishing why in this particular case such amounts are warranted. Since the plaintiff's motion is procedurally deficient, denial without prejudice is warranted to provide an opportunity to the plaintiff to correct the deficiencies and provide proper evidentiary support for his motion, as well as an opportunity to the defaulting defendant to oppose the amounts of damages requested. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992).
RECOMMENDATION
For the foregoing reasons, I recommend that: (1) the plaintiff's motion for judgment by default, Docket Entry No. 20, be denied without prejudice; and (2) the plaintiff serve his renewed motion for judgment by default on the defendant and file proof of service, as required by Fed.R.Civ.P. 4(1).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Any requests for an extension of time for filing objections must be directed to Judge Vyskocil. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).