Opinion
05 Civ. 10100 (KMW)(KNF).
May 9, 2007
REPORT RECOMMENDATION
The plaintiff, Days Inns Worldwide, Inc. ("Days Inn"), brought this action against Amar Hotels, Inc. ("Amar"), Neelu Thakoor ("Thakoor") and Ajitkumar Mehta ("Mehta") (collectively "defendants") to recover damages for: (1) trademark infringement, in violation of Sections 32 and 43(a) and (c) of the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a) (c); and (2) breach of contract. Before the Court is a motion by the plaintiff for the entry of a judgment by default against defendant Amar.
The action against Thakoor was dismissed on March 20, 2007. As a consequence of Mehta's pending bankruptcy proceeding, in the Southern District of Georgia, the action against him has been stayed.
On November 30, 2005, the plaintiff filed the instant action. Upon Amar's failure to file an answer or otherwise respond to the complaint, on March 21, 2006, the plaintiff made a motion for a judgment by default. Thereafter, in May 2006, the plaintiff filed an amended complaint. In December 2006, your Honor referred the matter to the undersigned for a report and recommendation on the plaintiff's application for a judgment by default.
On January 11, 2007, the Court directed the plaintiff to file proof with the Clerk of Court that the summons and amended complaint had been served on the defendants. The plaintiff complied with the Court's order. In a letter sent to the Court, dated January 31, 2007, the plaintiff's counsel requested that the Court consider the plaintiff's "pending application for default [filed in March 2006] as to Amar Hotels, Inc." or, alternatively, direct the plaintiff to file a "new application for default as to Amar Hotels, Inc." On March 22, 2007, the plaintiff filed an unexecuted clerk's certificate noting Amar's default, along with a declaration prepared by Robert C. Brady, in support of a new motion for the entry of a judgment by default against Amar, based on its failure to plead or otherwise defend against the amended complaint.
Rule 55 of the Federal Rules of Civil Procedure provides for entry of a judgment by default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules." Fed.R.Civ.P. 55(a). However, before a party that has made a motion for the entry of a judgment by default can obtain that relief, the movant must follow a two-step process.
"First, Fed.R.Civ.P. 55(a) requires the clerk to enter the default of a party who fails to plead or otherwise defend as required by the Federal Rules of Civil Procedure. The party seeking entry of default must show by affidavit or otherwise that entry of default is appropriate." Thomas v. Scalvo, No. 94 Civ. 1568, 1998 WL 51861, at *2 (N.D.N.Y. Feb. 4, 1998) (citing Fed.R.Civ.P. 55[a]); see also Local Civil Rule 55.1 of this court. Upon issuance of the clerk's certificate of default, the moving party may then request that the clerk enter a default judgment "if the claim to which no response has been made only [seeks] payment of a sum certain, and does not include a request for attorney's fees or other substantive relief. . . ." Local Civil Rule 55.2(a) of this court. "In all other cases the party seeking a judgment by default shall apply to the court as described in Federal Rule of Civil Procedure 55(b)(2), and shall append to the application (1) the clerk's certificate of default, (2) a copy of the claim to which no response has been made, and (3) a proposed form of default judgment." Local Civil Rule 55.2(b) of this court.
In the instant case, the plaintiff's first motion for a judgment by default is moot, since the plaintiff filed an amended complaint after filing that motion. See Dourlain v. U.S., No. 01 Civ. 1251, 2003 WL 22753452, at *2 (N.D.N.Y. Sept. 26, 2003) (upon plaintiff's filing an amended complaint, the plaintiff's motion for default judgment on the original complaint was made moot).
The plaintiffs most recent submissions to the Court, dated March 22, 2007, appear, at first blush, to support a new motion for entry of a judgment by default against Amar, based on Amar's failure to answer or move with respect to the amended complaint. However, the plaintiff failed to comply with Fed.R.Civ.P. 55(a) and (b) and Local Civil Rules 55.1 and 55.2(b) of this court. The plaintiff failed to provide the Court with: (1) an executed clerk's certificate of default; and (2) a proposed form of default judgment. See Fed.R.Civ.P. 55(b)(2) and Local Civil Rules 55.1 and 55.2 of this court. Since the plaintiff failed to comply with Fed.R.Civ.P. 55 and Local Civil Rules 55.1 and 55.2 of this court, its motion, for a judgment by default against Amar, should be denied.
An unexecuted certificate of default was filed with the court on March 22, 2007, via the court's Electronic Case Filing System ("ECF"). However, the ECF Guidelines instruct that "[d]efault judgments should not be submitted through the ECF system. Instead they should be sent by email to the Clerk, in word processing format (WordPerfect or Word) rather than as a pdf document. Email the default judgment documents to . . . orders_and_judgments@nysd.gov". United States District Court SDNY, ECF Guidelines, How do I file a default judgment?, http://wwwl.nysd.uscourts.gov/ecf_guidelines_faq.php (last visited May 2, 2007).
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 have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, United States District Judge, 500 Pearl St., Room 1610, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).