Opinion
99 Civ. 9685 (KMW) (JCF)
April 19, 2001
REPORT AND RECOMMENDATION
This is a contract action in which the plaintiff, Derekoylu Tekstil, Ltd. ("Derekoylu"), seeks payment for goods sold and delivered. The defendant, Oxford Industries, Inc. ("Oxford") has counterclaimed, seeking damages based on the delivery of non-conforming goods.
Throughout the discovery phase, the defendant has had difficulty obtaining responsive information from the plaintiff. (Memorandum Endorsement dated March 15, 2000; Order dated Oct. 25, 2000). This was apparently due in large part to Derekoylu's failure to communicate with its attorney, Steven P. Herman. Never having been paid for his services, Mr. Herman finally mvoed to be relieved. By Order dated March 7, 2001, I granted that motion and directed Derekoylu to appear by new counsel no later than April 6, 2001, failing which the complaint would be dismissed. I further indicated that the Court would exercise supplemental jurisdiction over Mr. Herman's application for an order awarding him his attorney's fees, and I ordered Derekoylu to respond to that application by April 6, failing which it would be granted by default. This order was sent to Derekoylu in care of its agent in New York.
The plaintiff has failed to comply with my order. As a corporation Derekoylu may not appear pro se but must be represented by counsel. See Rowland v. California Men's Colony, 506 U.S. 194, 202-03 (1993); Jones v. Niagara Fronties Transportation Authority, 722 F.2d 20, 22 (2d Cir. 1983); Tuff-N-Rumble Management, Inc. v. Sugarhill Music Publishing Inc., No. 97 Civ. 7700, 2000 WL 1801847, at *2 (S.D.N.Y. Dec. 7, 2000). Because Derekoylu has not retained new counsel it cannot prosecute this litigation, and judgment by default should therefore be entered against it. Similarly, Derekoylu has defaulted in responding to Mr. Herman's attorney's fee application. Mr. Herman has presented the retainer agreement in which Derekoylu committed to pay him a retainer of $7,500.00 and to compensate him at the rate of $225.00 per hour for his services. (Affidavit of Steven P. Herman dated Dec. 29, 2000 ("Herman Aff."), Exh. A). He has also submitted time records showing that he expended 32.10 hours on this case and has received no payment (Herman Aff., Exh. B). Accordingly, he is entitled to an award of $7,222.50.
Conclusion
For the reasons set forth above, I recommend that judgment by default be awarded in favor of Oxford and against Derekoylu and that the complaint be dismissed. I further recommend that judgment be rendered in favor of Oxford on its counterclaims and that it be awarded an amount to be determined following an inquest. Finally, I recommend that judgment be awarded in favor of Steven P. Herman and against Derekoylu in the amount of $7,222.50. Pursuant to 28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kimba M. Wood, Room 1610, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.