Opinion
20-CV-9366 (GBD) (OTW)
01-19-2024
JAMIE RIO MARTINEZ, Plaintiff, v. ACCELERANT MEDIA, LLC et al., Defendants.
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE:
I. INTRODUCTION
Plaintiff Jamie Rio Martinez brings this action against Defendants Accelerant Media, LLC (“Accelerant LLC”), Accelerant Media Corp. (“Accelerant Corp.”), and Chet Stojanovich for breach of contract (Count I), breach of the implied covenant of good faith and fair dealing (Count II), fraud/fraudulent inducement (Count IV), and unjust enrichment (Count V).The matter is before the undersigned for an inquest following the entry of a default against Defendants.
Plaintiff is not seeking default judgment or a calculation of damages on Count III of the First Amended Complaint, Violation of New York General Business Law § 359.
Having reviewed Plaintiff's submissions, for the reasons below, I recommend that Plaintiff be awarded a total of $613,909.31 in damages. Plaintiff should also be awarded prejudgment interest in accordance with New York law, post-judgment interest calculated in accordance with 28 U.S.C. § 1961(a), and court costs totaling $1,651.81.
II. BACKGROUND
A. Factual History
Defendants engaged in a fraudulent scheme to solicit investments from Plaintiff in ostensibly “proprietary” 3-D television technology. (Pls. Proposed Findings of Fact at ¶¶ 24, 27, 45, ECF 72). Plaintiff entered into a series of agreements to invest $475,000 in Defendants' purported venture. Id. at ¶ 47. These investments consisted of a $150,000 transfer to Defendants in April 2017; a $20,000 transfer to Defendants in August 2017; and a $305,000 transfer to Defendants in November 2017. Id. Plaintiff entered into a final investment agreement on October 7, 2017 (the “October 2017 Agreement”), in which Plaintiff agreed to provide real estate property at 1801 South Palomo, Palm Springs, California 92264 (the “1801 Property”) as collateral to secure future capital investments in Accelerant Corp. Id. at ¶ 39. The October 2017 Agreement obligated Accelerant Corp., with Defendant Stojanovich's personal guarantee, to make all “service” payments on the 1801 Property, such as monthly HOA payments and property insurance. Id. at ¶¶ 41-42. The October 2017 Agreement further obligated Accelerant Corp. (and Stojanovich through his personal guarantee) to repay Plaintiff as follows:
ACCELERANT hereby agrees to pay INVESTOR a 5% (five percent) REVENUE SHARE of gross revenues generated and received by ACCELERANT during the term of this Agreement. Such REVENUE SHARE is capped at 3.5 to 1 or $1,995,000 plus repayment of the CONVERTIBLE AGREEMENT amounting to $150,000 plus the repayment of the loan for $20,000 plus the INVESTMENT of $400,000 which, in total amounts to $2,565,000 in REVENUE SHARE and capital repayments to INVESTOR.Id. at ¶ 43. Defendants failed to make the service payments on the 1801 Property they were required to make, and did not remunerate Plaintiff for his investments. Id. at ¶¶ 45, 49. In addition to the $475,000 directly transferred by Plaintiff to Defendants, Plaintiff incurred $22,707.86 in wire and loan fees, and paid $116,201.45 to cover service payments on the 1801 Property that Defendants failed to pay. Id. at ¶¶ 47-49. Plaintiff also did not receive any revenue sharing payments. Id. at ¶ 50.
On November 26, 2017, Matt Harper, who had held himself out as an agent of Stojanovich and Accelerant Corp., and as the Chief Business Development Officer for Accelerant LLC, told Plaintiff that the 3-D technology Plaintiff had invested in was already widely available, including at Wal-Mart. Id. at ¶¶ 7, 45. Harper further told Plaintiff that Defendants' 3-D television business was a scam, and that Plaintiff would not be receiving anything in connection with the October 2017 Agreement. Id.
Harper was originally named as a defendant in this action, and was dismissed on September 28, 2021. (ECF 29).
B. Procedural History
Plaintiff commenced this action by filing his complaint on November 9, 2020. (ECF 1). A summons and copy of the complaint were properly served on all Defendants in November 2020. (ECF Nos. 14-17). On September 28, 2021, following the Court's dismissal of Matt Harper from the action (ECF 29), Plaintiff filed a First Amended Complaint. (ECF 36). An amended summons and copy of the First Amended Complaint were properly served on Defendants in October 2021. (ECF Nos. 45-47). At Plaintiff's request, the Clerk of Court entered default as to all Defendants on December 22, 2021. (ECF 25 at 2; ECF 55). Plaintiff moved for default judgment against all Defendants on October 17, 2022, and Judge Daniels granted the motion on October 24, 2022. (ECF Nos. 61, 65). After this matter was referred to me for an inquest (ECF 66), Plaintiff filed his inquest memorandum on November 28, 2022. (ECF 72). On April 13, 2023, at the Court's direction, Plaintiff filed a supplemental memorandum of law on what effect, if any, Defendant Stojanovich's sentence in his criminal case (22-CR-339 (S.D.N.Y.)) has on this case. (ECF 79).
III. DISCUSSION
A. Inquest Standard
Even though a complaint's factual allegations are presumed true in the event of a default, damages allegations are not entitled to the same presumption. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). The plaintiff must still supply an evidentiary basis for the specific damages amount sought. Santana v. Latino Express Restaurants, Inc., 198 F.Supp.3d 285, 292 (S.D.N.Y. 2016). An inquest into damages may be conducted without an evidentiary hearing. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir. 1993). “[A] hearing is not required where a sufficient basis on which to make a calculation exists.” Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC), 2012 WL 1669341 at *2 (S.D.N.Y. May 14, 2012). In this case, no hearing was requested or held, as the damages awarded can be ascertained “with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).
B. Jurisdiction and Venue
This Court has proper subject matter jurisdiction over the case under 28 U.S.C. § 1332 as the parties are completely diverse and the amount in controversy exceeds $75,000. Plaintiff is a resident of California. (ECF 72 at 3). Accelerant Corp. has its principal place of business in New York. Id. Stojanovich is a resident of New York. Id.
As to Defendant Accelerant LLC, while the Court may exercise personal jurisdiction because Accelerant LLC has its principal place of business in New York, and is organized under the laws of New York, the citizenship of an LLC for the purposes of diversity jurisdiction is determined by the citizenship of each of its members. See, e.g., Bayerische Landesbank, New York Branch v. Aladdin Capital Management LLC, 692 F.3d 42, 49 (2d Cir. 2012). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citation omitted). In his Proposed Findings of Fact and in his complaint, Plaintiff has not alleged the citizenship of any of the members of Accelerant LLC. Because Plaintiff has not done so, he has not met his burden to assert subject matter jurisdiction. Accordingly, I recommend Accelerant LLC be dismissed from this action without prejudice.
Although Plaintiff obtained a default, Plaintiff must still show proper service before the Court can exercise personal jurisdiction over Defendants. See Martinez v. Alimentos Saludables Corp., No. 16-CV-1997 (DLI) (CLP), 2017 WL 5033650, at *4 (E.D.N.Y. Sept. 22, 2017) (“Personal jurisdiction is a necessary prerequisite to entry of a default judgment.”). Under Federal Rule of Civil Procedure 4(e)(1), service on an individual can be effected by “following state law for serving a summons . . . where the district court is located,” here New York. New York law permits service of an individual defendant by both delivering the summons and complaint to “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served” and mailing the summons to the last known residence or place of business. N.Y. C.P.L.R. § 308(2); William Gottlieb Mgmt. Co, LLC v. Carlin, No. 20-CV-8907 (PAC), 2022 WL 17822578, at *3 (S.D.N.Y. Dec. 20, 2022). Here, Plaintiff properly served an amended summons and copy of the First Amended Complaint on all Defendants. (ECF 72 at 2).
C. Damages
Under Fed.R.Civ.P. 55(b), the Court must make an independent assessment of damages when deciding a motion for default judgment. See Securities & Exch. Comm'n v. Management Dyn., Inc., 515 F.2d 801, 814 (2d Cir. 1975); Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., 513 F.Supp.2d 1, 3-4 (S.D.N.Y. 2007). Damages may be proven through an evidentiary hearing, or through affidavits and other documentary submissions that provide a factual basis for determining the amount of damages to be awarded. Greyhound, 973 F.2d at 158. Defendants' default compels this Court to take the alleged facts as true. Id.
Plaintiff should receive damages for breach of contract and fraudulent inducement. He should also receive pre-judgment interest and post-judgment interest.
Plaintiff also seeks damages for breach of the implied covenant of good faith and fair dealing, and for unjust enrichment. For the reasons detailed below, infra n. 6, I recommend that judgment not be granted as to Plaintiff's breach of the implied covenant claim. Accordingly, Plaintiff should not receive damages under this claim. As to the unjust enrichment claim, this claim was pleaded in the alternative to Plaintiff's breach of contract claim. As Plaintiff concedes, because Plaintiff succeeds on his breach of contract claim, his unjust enrichment claim is duplicative. See ECF 72 at 16 n.6; Cooper v. Anheuser-Busch, LLC, 553 F.Supp.3d 83, 115-16 (S.D.N.Y. 2021).
1. Breach of Contract
Plaintiff has adequately alleged that all remaining Defendants are liable for breaching the October 2017 Agreement. Under New York law, the elements of a breach of contract claim are: 1) the formation of an agreement; 2) performance by one party; 3) breach of the agreement by the other party; and 4) damages. Berman v. Sugo LLC, 580 F.Supp.2d 191, 202 (S.D.N.Y. 2008) (citing First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998).
Section 16 of the October 2017 Agreement provides that the agreement is governed by New York law. (ECF 72 at 10 n.4).
Plaintiff's complaint establishes 1) that he and Accelerant Corp. entered into the October 2017 Agreement, and that Stojanovich became a party to the agreement by personally guaranteeing Accelerant Corp.'s obligations pursuant to the agreement; 2) that Plaintiff performed under the agreement by providing the 1801 Property as collateral to secure future capital investment and taking out a loan on the 1801 Property to provide additional funding to Accelerant Corp.; 3) that Accelerant Corp. and Stojanovich breached the agreement by not repaying Plaintiff for his investments, not making service payments on the 1801 Property; and 4) that Plaintiff suffered damages as a result of Accelerant Corp. and Stojanovich's breach. (ECF 72 at 10-11). Accordingly, Plaintiff has shown that Defendants Accelerant Corp. and Stojanovich breached the October 2017 Agreement.
In the alternative, Plaintiff argues that the remaining Defendants also breached the implied covenant of good faith and fair dealing. “Under New York law, parties to an express contract are bound by an implied duty of good faith, but breach of that duty is merely a breach of the underlying contract.” Harris v. Provident Life & Acc. Ins. Co., 310 F.3d 73, 80 (2d Cir. 2002) (citing Fasolino Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1056 (2d Cir. 1992)). When claims for breach of contract and breach of the implied covenant of good faith and fair dealing are “based upon the same facts,” the breach of the implied covenant claim is duplicative. Jujamcyn Theaters LLC v. Fed. Ins. Co., No. 20-CV-6781, 2023 WL 2366789, at *4 (S.D.N.Y. Mar. 6, 2023). Because both Count I and Count II are based upon the same facts alleged in the complaint, and concern breach of the October 2017 Agreement, Plaintiff's implied covenant claim is duplicative of his breach of contract claim.
2. Fraudulent Inducement
Plaintiff has adequately alleged that all remaining Defendants are liable for fraud and fraudulent inducement. Federal Rule of Civil Procedure 9(b), requires a plaintiff to state with particularity the circumstances constituting fraud or mistake. “A complaint must therefore: ‘(1) specify the statements that the claimant contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.' ” Ithaca Cap. Invs. I S.A. v. Trump Panama Hotel Mgmt. LLC, 450 F.Supp.3d 358, 369 (S.D.N.Y. 2020) (quoting ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007)).
Under New York law, the elements of common law fraud and fraudulent inducement are the same. Id. See also Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 31 N.Y.3d. 569, 578-79 (2018). For fraudulent inducement, a plaintiff must plead that: “(1) the other party made a representation as to a material fact; (2) such representation was false; (3) the other party intended to deceive; (4) claimant believed and justifiably relied upon the statement and was induced by it to engage in a certain course of conduct; and (5) as a result of such reliance claimant sustained pecuniary loss.” Trump Panama Hotel, 493 F.3d at 99 (cleaned up).
I find that Plaintiff's complaint meets the requirements of Rule 9(b). I also find that Plaintiff's complaint adequately pleads (1) that Defendants made statements about their purported innovative 3-D television technology and its profitability; (2) that Defendants' representations were false and the purported technology was already widely available at a large retailer; (3) Defendants intended to deceive Plaintiff;(4) that Plaintiff believed Defendants and justifiably relied upon Defendants' detailed written business plans, written investment agreements, and other representations and was induced by them to invest considerable resources into Accelerant Corp.; and (5) that as a result of his reliance on Defendants' statements, Plaintiff sustained significant pecuniary losses, as detailed above. (Pls. Proposed Findings of Fact at ¶¶ 47-49, ECF 72).
For example, Harper admitted to Plaintiff that the business plan was a scam; Defendant Stojanovich stopped communicating with Plaintiff following Harper's admission; and the FBI began investigating Defendants' business activities in early 2018. (ECF 72 at 14).
3. Damages
Plaintiff seeks damages for breach of contract and fraudulent inducement.
“Under New York law, a successful plaintiff in a breach of contract action is entitled to damages in the ‘amount necessary to put the plaintiff in the same economic position he would have been in had the defendant fulfilled his contract.' ” Scholastic, Inc. v. Snap TV, Inc., No. 09-CV-4349 (GBD) (GWG), 2011 WL 1330246, at *3 (S.D.N.Y. Apr. 8, 2011) (quoting Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 495 (2d Cir. 1995)), adopted by 2012 WL 3041786 (S.D.N.Y. Jul. 23, 2012); accord Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 185 (2d Cir. 2007) (“A party injured by breach of contract is entitled to be placed in the position it would have occupied had the contract been fulfilled according to its terms.”). A successful plaintiff in a fraudulent inducement action is entitled to “damages [ ] to compensate plaintiff[ ] for what they lost because of the fraud, not for what they might have gained.” Continental Cas. Co. v. PricewaterhouseCoopers, LLP, 15 N.Y.3d 264, 271 (2010).
Plaintiff seeks damages for breach of the October 2017 Agreement in the amount of $2,108,961.76, comprised of $1,995,000 in “revenue sharing” Defendants were obligated to pay under Section 5 of the Agreement; and $116,210.45 in service payments Accelerant Corp. and Stojanovich were required to pay in connection with the 1801 Property under Section 2 of the Agreement, and that Plaintiff ultimately had to pay. (ECF 72 at 17).
Plaintiff has not shown that he is entitled to the $1,995,000 referred to in the October 2017 Agreement. Section 5 of the agreement provides that:
ACCELERANT hereby agrees to pay INVESTOR [Martinez] a 5% (five percent) REVENUE SHARE of gross revenues generated and received by ACCELERANT during the term of this Agreement. Such REVENUE SHARE is capped at 3.5 to 1 or $1,995,000 plus repayment of the CONVERTIBLE AGREEMENT amounting to $150,000 plus the repayment of the loan for $20,000 plus the INVESTMENT of $400,000 which, in total amounts to $2,265,000 in REVENUE SHARE and capital repayments to INVESTOR.
Pls. Proposed Findings of Fact at ¶ 43, ECF 72. In order to recover loss of future profits as damages for breach of contract, a plaintiff must show “with certainty that such damages have been caused by the breach and, second, the alleged loss must be capable of proof with reasonable certainty. In other words, the damages may not be merely speculative, possible or imaginary, but must be reasonably certain and directly traceable to the breach, not remote or the result of other intervening causes.” Kenford Co. v. Erie Cnty., 67 N.Y.2d 257, 261 (1986) (internal citation omitted).
Here, Plaintiff has not shown that he is entitled to the revenue sharing payments under a breach of contract theory. The logic that requires a plaintiff to prove lost profits with reasonable certainty applies equally to revenue sharing payments that were never made. Because the “business venture” Plaintiff invested in was entirely fraudulent, any revenue sharing payments would be, by definition, “imaginary” and not “reasonably certain.”
Even if the business venture had been legitimate, and Defendants had performed as contemplated under the contract, Plaintiff would still not be able to show that it would have generated any revenue, much less the full $1,995,000. The clear meaning of the revenue sharing provision in the October 2017 Agreement is that Plaintiff could have received up to $1,995,000 in revenue. To award the maximum in revenue sharing allowed for under the October 17 Agreement would go beyond putting Plaintiff in the same position he would be in had Accelerant Corp. and Stojanovich performed under the contract as envisioned. Accordingly, I recommend that Plaintiff's request for $2,108,961.76 in total damages be denied.
Plaintiff does not seek the full amount of potential revenue sharing payments under a fraud/fraudulent inducement theory. The Court notes, however, that such an award of damages would be similarly unavailable under this theory because it would not “compensate plaintiff[ ] for what [he] lost because of the fraud,” but rather “for what [he] might have gained.” Continental Cas. Co., 15 N.Y.3d at 271.
In the alternative, Plaintiff seeks $613,918.31 in damages as full restitution of the money he paid out of pocket to Defendants. (ECF 72 at 18). Investors in a fraudulent enterprise who reasonably believed that they were investing in a legitimate business enterprise are entitled to claims for restitution. In re Bernard L. Madoff Inv. Securities, LLC, 440 B.R. 243, 262 (Bankr. S.D.N.Y. 2010). Courts may award restitution damages in cases of total breach measured in terms of the value of the benefit conferred on the breaching party. Young v. Rosenberg, 2017 WL 3267769, at *1 (S.D.N.Y. Aug. 1, 2017).
Plaintiff's inquest submissions set forth that he is entitled to restitution damages for the money he delivered to Defendants, and for the money he spent in connection with his investments and the 1801 Property. This is comprised of $475,000 in direct investments, $22,707.86 in wire and loan fees paid to facilitate those investments, and $116,210.45 Plaintiff paid in service payments on the 1801 Property, for payments that Defendants represented would be paid by them, which were not. The $475,000 Plaintiff conveyed to Defendants clearly conferred a benefit to them in that amount; the $22,707.86 in wire and loan fees were paid to facilitate the conferring of that benefit; and the $116,201.45 in service payments were made to maintain collateral for the securing of future investments by Defendants. Together, these dollar amounts comprise both the value of Plaintiff's losses as a result of Defendants' fraud, and the benefit conferred on Defendants Accelerant Corp. and Stojanovich. Accordingly, I recommend that Plaintiff be awarded $613,909.31 in damages.
4. Punitive Damages
Plaintiff also seeks an award of punitive damages against the remaining Defendants for breach of the implied covenant of good faith and fair dealing, and for fraud/fraudulent inducement.
The purpose of an award of punitive damages is to deter and punish especially reprehensible conduct. Fagan v. AmerisourceBergen Corp., 356 F.Supp.2d 198, 220 (E.D.N.Y. 2004) (citing State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003)). In the Second Circuit, in cases where the parties are in a contractual relationship, punitive damages are generally only available when such damages are “necessary to vindicate a public right.” Mayline Enterprises, Inc. v. Milea Truck Sales Corp., 641 F.Supp.2d 304, 312 (S.D.N.Y. 2009). “To the extent that some courts have found meeting the ‘public harm' requirement unnecessary, the Second Circuit (whose rulings bind this court) has concluded that they are against the weight of authority on the issue.” Id. (citing TVT Records v. Island Def Jam Music Group, 412 F.3d 82, 94 & n. 12 (2d Cir. 2005)). But see Bloomfield Investment Resources Corp. v. Daniloff, No. 17-CV-4181, 2023 WL 3597618, at *16 (S.D.N.Y. May 23, 2023).
Even if punitive damages were available in this action, punitive damages should be awarded only when “necessary to ‘achieve punishment or deterrence.' ” Sotheby's, Inc. v. Thut, No. 21-CV-6574, 2022 WL 3351534, at *15 (S.D.N.Y. July 28, 2022) (citing State Farm, 538 U.S. at 409), report and recommendation adopted 2022 WL 3354674, at *1 (S.D.N.Y. Aug. 12, 2022). When an award of compensatory damages is “particularly substantial,” the deterrent effect of punitive damages is severely reduced or eliminated entirely. See Sotheby's, 2022 WL 3351534, at *15; Bloomfield, 2023 WL 3597618, at *16. Here, because Plaintiff is receiving a substantial award in compensatory damages, and because Defendant Stojanovich is currently serving a term of incarceration for unrelated but very similar fraudulent conduct to what is alleged in Plaintiff's complaint, I find that an award of punitive damages is both unnecessary and likely unrecoverable. Although Defendant Stojanovich's criminal sentence supports the contention that his conduct was “especially reprehensible,” the deterrent effect of any punitive damages award would be duplicative of the deterrent effect of his term of incarceration. I recommend that no punitive damages be awarded.
See Pls. Supp. Br. in Support of Mot. For Default J., ECF 79.
5. Interest and Court Costs
Plaintiff seeks pre-judgment and post-judgment interest pursuant to New York and federal law.
In a diversity case, pre-judgment interest is governed by state law. Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008). Under N.Y. C.P.L.R. §§ 5001, 5004, Plaintiff is entitled to prejudgment interest of nine percent per annum from “the earliest ascertainable date the cause of action existed.” See also EMA Financial v. TPT Global Tech, Inc., No. 10-CV-8781, 2023 WL 7043227, at *8 (S.D.N.Y. Oct. 26, 2023). Here, the earliest ascertainable date is November 26, 2017, the date Harper admitted to Martinez that the business venture was a scam. Accordingly, Plaintiff should be awarded prejudgment interest of nine percent per annum from November 26, 2017 through November 28, 2022, the date of Plaintiff's filing his inquest papers, for a total of $276,713.31 ($613,909.31 damages x 0.09 x [1828 days/365 days per year]). The Court recommends that the Clerk of Court further calculate additional prejudgment interest with that same nine percent per annum from November 28, 2022, the date of the inquest papers, through the date of judgment at a rate of $151.37 per day.
Plaintiff also seeks an award of post-judgment interest pursuant to federal law. 28 U.S.C. § 1961 provides that “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court.” “Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of judgment.” Id. The Second Circuit has held that an award of postjudgment interest is mandatory. See Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008). Accordingly, I recommend that Plaintiff be awarded post-judgment interest from the date judgment is entered until the date the judgment is paid.
I also recommend Plaintiff be awarded $857.67 in court costs incurred with respect to Defendant Accelerant Corp., and $794.14 with respect to Defendant Stojanovich, for fees of the Clerk and fees for service of summons and subpoena. See ECF Nos. 62, 62-4 at 2, 4. The Court finds these costs to be reasonable and comparable to other amounts awarded upon default judgment. See, e.g., LG Cap. Funding, LLC v. AIM Expl., Inc., No. 17-CV-03118 (KMW) (SN), 2021 WL 4482654, at *8 (S.D.N.Y. Apr. 20, 2021), report and recommendation adopted, No. 17-CV-3118 (KMW), 2021 WL 4482148 (S.D.N.Y. Sept. 30, 2021); Romita v. Anchor Tank Lines Corp., No. 09-cv-09997 (DLC), 2011 WL 1641981, at *2 (S.D.N.Y. Apr. 29, 2011).
IV. CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants Accelerant Corp. and Chet Stojanovich be held jointly and severally liable to Plaintiff for $613,909.31 in breach of contract and fraud/fraudulent inducement damages; pre-judgment interest of $276,713.31 plus additional prejudgment interest from November 28, 2022 through the date of judgment at a rate of $151.37 per day; post-judgment interest in accordance with state and federal law from the date judgment is entered until the date the judgment is paid; and $857.67 in court costs incurred with respect to Defendant Accelerant Corp., and $794.14 with respect to Defendant Stojanovich. I also respectfully recommend that Defendant Accelerant LLC be dismissed from this action without prejudice. See infra n. 3.
V. OBJECTIONS
In accordance with 28 U.S.C. §636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable George B. Daniels, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Daniels.
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, 155 (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. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).