Certified Interiors, Inc. v. ALSPEC Industries Limited

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CERTIFIED INTERIORS, INC.,

Plaintiff, REPORT AND

RECOMMENDATION

-against- 22-CV-7043

(GRB)(SIL)

ALSPEC INDUSTRIES LIMITED,

INTERSPEC SYSTEMS LIMITED,

and VDF VERTICAL,

Defendants.

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STEVEN I. LOCKE, United States Magistrate Judge:

Presently before the Court in this diversity-breach of contract action, on

referral from the Honorable Gary R. Brown for Report and Recommendation, is

Plaintiff Certified Interiors, Inc.’s (“Plaintiff” or “CII”) motion to: (i) strike Defendants

VDF Vertical’s (“VDF”), Interspec Systems Limited’s (“Interspec”), and Alspec

Industries Limited’s (“Alspec”) (collectively, “Defendants”) Answer; (ii) enter a default

judgment against Defendants; and (iii) award CII costs and attorneys’ fees to date.

See Plaintiff’s Motion (“Plaintiff’s Motion” or “Pl. Mot.”), DE [60].

By way of Complaint dated November 18, 2022, Plaintiff commenced this

action alleging that Alspec and its alter egos, Interspec and VDF, breached a contract

with CII related to a public construction and improvement project. See Complaint

(“Compl.”), DE [1]. Defendants answered on February 6, 2023. See Answer, DE [11].

Subsequently, Defendants failed to appear for three consecutive status conferences

on July 15, August 1, and August 13, 2024, and were warned each time that a

continued failure to appear could result in their Answer being stricket. See Minute

Orders, DEs [50], [54], [57]. CII filed a letter motion for a pre-motion conference on

September 16, 2024, which the Court construed as Plaintiff’s Motion. See DE [60];

Elec. Order dated Sept. 16, 2024. For the reasons set forth herein, the Court

respectfully recommends granting CII’s motion to strike the answer, and denying

Plaintiff’s motions for a default judgment and for costs and attorneys’ fees without

prejudice and with leave to renew.

I. PLAINTIFF’S MOTION TO STRIKE THE ANSWER

a. Legal Standards

Under Federal Rules of Civil Procedure 16(f)(1)(A) and 37(b)(2)(A)(iii), a court

may sanction a party by striking its pleadings if that party fails to appear at a

scheduling or other pretrial conference. See Muller v. NYC Motorcars of Freeport

Corp., No. 2:20-CV-1497 (NJC)(LGD), 2024 WL 3431957, at *5 (E.D.N.Y. July 16,

2024). “[U]se of the most severe sanctions should be limited to cases involving

willfulness, bad faith, or fault on the part of the non-compliant party.” Victoriano

Gonzalez v. Victoria G's Pizzeria LLC, No. 19-CV-6996, 2021 WL 6065744, at *2

(E.D.N.Y. Dec. 22, 2021), report and recommendation adopted, 2022 WL 842666

(E.D.N.Y. Mar. 22, 2022) (citation omitted). Courts evaluating whether striking

pleadings is an appropriate sanction consider: (i) whether the party’s actions have

been willful; (ii) whether lesser sanctions would be effective; (iii) the duration of

noncompliance; and (iv) whether the noncompliant party has been warned that its

pleadings may be struck. See Xin Hao Liu v. Millenium Motors Sports, LLC, No. 17-

CV-6438 (RPK)(RER), 2020 WL 7028924, at *3 (E.D.N.Y. Nov. 5, 2020), report and

recommendation adopted, No. 17-CV-6438, 2020 WL 7024378 (E.D.N.Y. Nov. 30,

2020) (citation omitted). “Willfulness is typically inferred from the violation of

multiple court orders.” Icon Int'l, Inc. v. Elevation Health LLC, 347 F.R.D. 274, 288

(S.D.N.Y. 2024) (citation omitted).

b. Discussion

Here, the Court concludes that striking Defendants’ answer is appropriate.

Initially, as explained above, Defendants failed to appear for three consecutive status

conferences on July 15, August 1, and August 13, 2024, and have not appeared or

filed anything since. See Minute Orders, DEs [50], [54], [57]. Defendants also do not

oppose Plaintiff’s Motion. Accordingly, the Court concludes that Defendants’

noncompliance is willful. See Icon Int'l, Inc., 347 F.R.D. at 288. Next, the Court has

no reason to believe lesser sanctions would be effective. By failing to participate in

litigation since June 11, 2024, see DE [45], Defendants have abandoned their defense

of this case, and so this factor weighs in favor of striking their Answer. See United

States v. Real Prop. & Premises Located at 26421 Riverrock Way, Santa Clarita,

California 91350-3995, & All Proceeds Traceable Thereto, No. 15-CV-6762

(ARR)(RML), 2022 WL 2466833, at *3 (E.D.N.Y. May 20, 2022) (collecting cases).

Further, Defendants have been noncompliant for four months, since their first missed

conference on July 15, 2024, see Minute Order, DE [50], supporting striking the

Answer. See Loc. Union No. 40 of the Int'l Ass'n of Bridge v. Car-Wi Const., 88 F.

Supp. 3d 250, 265 (S.D.N.Y. 2015) (citing, inter alia, Embuscado v. DC Comics, 347

Fed.Appx. 700, 701 (2d Cir. 2009)) (“[D]urations of time as brief as a few months have

been held to weigh in favor of dispositive sanctions.”). Finally, Defendants were

warned three times that such sanctions were possible. See Minute Orders, DEs [50],

[54], [57]. For these reasons, the Court recommends striking Defendants’ Answer.

II. PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

a. Legal Standards

Motions for default judgment are governed by Fed. R. Civ. P. 55, which

provides for a two-step process. See Fed. R. Civ. P. 55; Priestley v. Headminder, Inc.,

647 F.3d 497, 504-05 (2d Cir. 2011). Initially, the moving party must obtain a

certificate of default from the Clerk of the Court. See Fed. R. Civ. P. 55(a). Once the

certificate of default is issued, the moving party may apply for entry of a default

judgment. Id. at 55(b). Where a default occurs, the well-pleaded factual allegations

set forth in a complaint relating to liability are deemed true. Vermont Teddy Bear

Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004); see Fed. R. Civ. P. 8(b)(6)

(“An allegation – other than one relating to the amount of damages – is admitted if a

responsive pleading is required and the allegation is not denied.”).

b. Discussion

Here, although a default judgment may eventually be appropriate, the Clerk

of the Court has not yet entered a Certificate of Default as required pursuant to Fed

R. Civ. P. 55(a), nor has CII requested entry of a Certificate of Default from the Clerk

of the Court. As the entry of a Certificate of Default is a prerequisite to obtaining a

default judgment, the Court respectfully recommends that this portion of Plaintiff’s

Motion be denied without prejudice and with leave to renew upon entry of a

Certificate of Default, in the event that the District Judge adopts the Court’s

recommendation to strike the Answer. See Freedom Mortgage Corp. v. Monteleone,

No. 19-CV-1410 (FB)(SJB), 2023 WL 4397222, at *2 (E.D.N.Y. June 16, 2023)

(denying motion for default judgment where the Clerk of the Court did not enter a

Certificate of Default); Charber Consultants, LLC v. G.O.A.T.S. Prods., LLC, No. 22-

CV-6045 (NSR), 2023 WL 3848335, at *1 (S.D.N.Y. Apr. 6, 2023) (denying motion for

default judgment without prejudice where the plaintiff had not obtained a Clerk’s

Certificate of Default); Grazette v. Rockefeller, No. 20-CV-965 (AJN)(SLC), 2022 WL

252631, at *2 (S.D.N.Y. Jan. 26, 2022) (denying the plaintiff’s motion for default

judgment where the plaintiff failed to obtain a Certificate of Default from the Clerk

of the Court); Bastien v. Samuels, No. 14-CV-1561 (JFB)(AKT), 2014 WL 5306016, at

*6 (E.D.N.Y. Oct. 15, 2014) (“The Court denies plaintiff’s motion for a default

judgment because plaintiff has not obtained an entry of default.”).

III. PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES

a. Legal Standards

Under Fed. R. Civ. P. 16(f)(2), in addition to any other sanction, a court must

order a noncompliant “party, its attorney, or both to pay the reasonable expenses—

including attorneys’ fees—incurred because of any noncompliance with this rule,

unless the noncompliance was substantially justified or other circumstances make an

award of expenses unjust.” Fed. R. Civ. P. 16(f)(2). “The party seeking an award of

fees has the obligation to submit contemporaneous time records that specify, for each

attorney, the nature of the work done, the hours expended, and the dates.”

McFarlane v. Harry's Nurses Registry, No. 17-CV-6350 (PKC)(PK), 2021 WL

2646327, at *3 (E.D.N.Y. June 28, 2021) (citing N.Y. State Ass'n for Retarded

Children, Inc. v. Carey, 711 F.2d 1136, 1147–48 (2d Cir. 1983)).

b. Discussion

Here, CII has not submitted “contemporaneous time records” to support its

request for an attorneys’ fees award, nor has it enumerated the costs expended on

this action to date. Without such documentation, its motion is premature. See, e.g.,

Scott v. City of New York, 626 F.3d 130, 134 (2d Cir. 2010); Nicole H. v. Comm'r of

Soc. Sec., No. 22-CV-830 (FPG), 2024 WL 2029970, at *2 (W.D.N.Y. Apr. 12, 2024);

Miller v. Haredim Consulting Inc., No. 19-CV-1474 (GTS)(DJS), 2020 WL 5035830,

at *6 (N.D.N.Y. Aug. 26, 2020). Accordingly, the Court recommends denying

Plaintiff’s motion for attorneys’ fees and costs without prejudice and with leave to

renew, accompanied by appropriate documentation.

IV. CONCLUSION

For the reasons set forth above, the Court respectfully recommends granting

CII’s motion to strike the answer and denying Plaintiff’s motions for a default

judgment and for costs and attorneys’ fees without prejudice and with leave to renew.

V. OBJECTIONS

A copy of this Report and Recommendation is being served on Plaintiff

electronic filing on the date below. CII must promptly serve a copy of this Report and

Recommendation on Defendants at their last known address and file proof of service

on the docket. Any objections to this Report and Recommendation must be filed with

the Clerk of the Court within fourteen days. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.

P. 72; Fed. R. Civ. P. 6(a) and 6(d). Failure to file objections within this period waives

the right to appeal the District Court’s Order. See Ferrer v. Woliver, No. 05-CV-3696,

2008 WL 4951035, at *2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118 F.3d 900, 902

(2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).

Dated: Central Islip, New York

November 20, 2024

/s/ Steven I. Locke

STEVEN I. LOCKE

United States Magistrate Judge