Holcim Solutions and Products US, LLC v. Mc Donald Metal & Roofing Supply Corp.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HOLCIM SOLUTIONS AND PRODUCTS US,
LLC, f/k/a FIRESTONE BUILDING PRODUCTS
COMPANY, LLC,
Plaintiff,
-against-
MCDONALD METAL & ROOFING SUPPLY
CORP.,
Defendant.
MEMORANDUM & ORDER
23-CV-4448 (NGG) (PCG)
NICHOLAS G. GARAUFIS, United States District Judge.
On June 15, 2023, Plaintiff Holcim Solutions and Products US,
LLC, f/k/a Firestone Building Products Company ("Holcim")
commenced 	this 	action 	against Defendant McDonald 	Metal
& Roofing Supply Corp. 	("McDonald"), seeking damages for
breach of contract and, in the alternative, unjust enrichment. (See
Compl. (Dkt. 1) Cf'! 13-19 (breach of contract), 20-26 (unjust en-
richment).) On November 10, 2023, McDonald was properly
served. (Summons (Dkt 17).) After McDonald failed to answer
the Complaint or otherwise appear to defend this case, the Clerk
of Court entered a Certificate of Default on December 28, 2023.
(Entry of Default (Dkt. 20).)
In the years since, Holcim has filed two unsuccessful motions for
default judgment, each time failing to comply with the local, pro-
cedural rules governing default judgment. Now pending before
the court is Holcim's third attempt. (Holcim's Third Mot. for De-
fault J. (Dkt. 39); Holcim's Mem. in Supp. of Third Mot. for
Default J. (Dkt. 40) .) The court referred the motion to Magistrate
1
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Judge Cheryl L. Pollak for a report and recommendation. 1 (Order
Referring Mot. 	Dated 	5/12/2025.) 	On December 19, 2025,
Judge Pollak issued the annexed Report and Recommendation
("R&R"), recommending that Holcim's motion for default judg-
ment be granted. (R&R (Dkt. 42) at 1.)
For the reasons set forth below, the court ADOPTS the R&R IN
ITS ENTIRETY. Accordingly, the court GRANTS Holcim's motion
for default judgment and AWARDS Holcim damages in the
amount of $951,132.34 with post-judgment interest accruing
pursuant to 28 U.S.C. § 1961.
I. 	BACKGROUND
The court assumes familiarity with the background of this case in
light 	of its 	previous 	memorandum 	and 	orders, 	as 	well 	as
Judge Pollak's description of the background facts and proce-
dural history in the annexed R&R. (See Mem. & Order Dated
8/30/2024 ("August 2024 Order") 	(Dkt. 31); Mem. & Order
Dated 3/27/2025 ("March 2025 Order") (Dkt. 36); R&R at 1-4.)
Therefore, the court provides a summary of only the pertinent
facts and procedural history here.
A. 	Factual Allegations
Holcim alleges that from October 2018 through January 2022,
McDonald failed to pay for the roofing and building products
Holcim sold and delivered to McDonald pursuant to McDonald's
requests. 	(See 	Compl. 'l'l 9-12.) 	Based on these 	allegations,
Holcim brings two claims against McDonald: (1) a breach of con-
tract claim for $951,132.34, the value of the aforementioned
products; and, in the alternative, (2) an unjust enrichment claim
1 At that time, Judge Pollak was the magistrate judge assigned to this case.
On January 14, 2026, the case was reassigned to Magistrate Judge Peggy
Cross-Goldenberg. (Order Reassigning Case Dated 1/14/2026.)
2
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based on McDonald's 	alleged nonpayment for those 	goods.
(Id. '1'113-19, 20-26.)
B. 	Procedural History
As mentioned, Holcim commenced this action on June 15, 2023,
and McDonald was properly served on November 10, 2023. On
December 28, 2023, the Clerk entered McDonald's default.
On January 10, 2024, Holcim filed its first motion for default
judgment. (Holcim's Mot. for Default J. (Dkt. 21).) The court re-
ferred 	the 	motion 	to 	Judge 	Pollak 	for 	a 	report 	and
recommendation, (Order Referring Mot. Dated 4/17/2024), and
on August 30, 2024, adopted her recommendation to deny the
motion without prejudice for failure to comply with Rules 7.1
and 55.2 of the Local Rules of the U.S. District Courts for the
Southern and Eastern Districts of New York ("Local Civil Rules"),
(see August 2024 Order at 1).
In the interim, Holcim renewed its motion-filing a second mo-
tion for default judgment on August 26, 2024. (Holcim's Second
Mot. for Default J. (Dkt. 30).) McDonald did not respond, and
the court referred Holcim's unopposed motion to Judge Pollak
for a report and recommendation. (Order Referring Mot. Dated
9/12/2024.) On March 27, 2025, the court rejected Judge Pol-
lak's 	recommendation to 	grant Holcim's second motion for
default judgment, denying the motion without prejudice because
Holcim failed to comply with Local Civil Rule 55.2. (See March
2025 Order at 1, 5-6.) The court also granted Holcim leave to file
a renewed motion for default judgment. (Id. at 1, 7.)
On May 9, 2025, Holcim filed its third motion for default judg-
ment-the motion at issue here. Again, 	McDonald 	did not
respond. Again, the court referred the motion to Judge Pollak for
a report and recommendation.
3
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C. 	Report and Recommendation
By report and 	recommendation dated December 19, 	2025,
Judge Pollak recommended that this court grant Holcim's third
motion for default judgment because it has now shown compli-
ance with the Local Civil Rules. (R&R at 1, 3-4.) In addressing
Holcim's request for default judgment, Judge Pollak also recom-
mended that this court award Holcim $951,132.34 in damages
with post-judgment interest accruing pursuant to Section 1961.
(Id. at 11.)
No party has objected to the R&R, and the time to do so has
passed. 	See 	28 U.S.C. 	§ 636(b)(l); 	Fed. R. Civ. P. 	72(b)(2).
(See also R&R at 11 ("Any objections to this [R&R] must be filed
... within fourteen (14) days of receipt of this Report. Failure to
file objections within the specified time waives the right to appeal
the district court's order.") (internal citations omitted).)
II. 	STANDARD OF REVIEW
In reviewing a report and recommendation, a district court may
"accept, reject, or modify, in whole or in part, the findings or rec-
ommendations 	made 	by 	the 	magistrate 	judge." 	28 U.S.C.
§ 636(b) (1) (C). If no objections have been made, the district
court "need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation."
Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amend-
ment; see also Colvin v. Berryhill, 734 F. App'x 756, 758 (2d Cir.
2018) (summary order) ("[Where] a party receives clear notice
of the consequences of not objecting to a report and recommen-
dation, the party's failure to object to any purported error or
omission in a magistrate judge's report results in the district
court's review only for clear error."). 2 Clear error is ((found only
2 When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.
4
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when, upon review of the entire record, the [c]ourt is left with
'the definite and firm conviction that a mistake has been commit-
ted."' See United States v. Veeraswamy, 765 F. Supp. 3d 168, 180
(E.D.N.Y. 2025) (quoting United States v. Snow, 462 F.3d 55, 72
(2d Cir. 2006)).
III. DISCUSSION
The court has reviewed the unopposed R&R for clear error. Hav-
ing found none, the court adopts the R&R in full pursuant to
28 U.S.C. § 636(b)(l).
A. 	Default Judgment
For the following reasons, the court adopts Judge Pollak's recom-
mendation that this court grant Holcim's third motion for default
judgment against McDonald.
Under Rule 55 (a) of the Federal Rules of Civil Procedure, "a party
defaults when [it] 'has failed to plead or otherwise defend' the
case at hand." Guggenheim Cap., LLCv. Birnbaum, 722 F.3d 444,
454 	(2d Cir. 	2013) 	(quoting Fed. R. Civ. P. 	55(a)); 	see also
JTH Tax LLC v. Kukla, No. 23-66, 2024 WL 826404, at *2 (2d Cir.
Feb. 28, 2024) (summary order) (same). After the Clerk enters a
party's default, Rule 55(a) requires that the default be "shown by
affidavit or otherwise." Fed. R. Civ. P. 55(a); see also Priestley
v. Headminde0 Inc., 647 F.3d 497, 504 (2d Cir. 2011) (same). In
addition, the movant must also "adhere[] to all of the applicable
procedural rules." Jimenez v. Green Olive Inc., 744 F. Supp. 3d
221, 241-42 (E.D.N.Y. 2024). This includes compliance with the
Local Civil Rules. See Trs. of Pavers & Rd. Builders Dist. Council
Welfare, Pension) andAnnuity Funds v. IKNA Constr. LLC, No. 24-
CV-0561 	(CBA) 	(JAM), 	2025 WL 447731, 	at 	*6 	(E.D.N.Y.
Jan. 15, 2025), amended report and recommendation adopted,
2025 WL 777108 (E.D.N.Y. Mar. 11, 2025); see also Century
Sur. Co. v. Atweek_, Inc., No. 16-CV-0335 (ENV) (PK), 2018 WL
5
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10466835, at *1 (E.D.N.Y. Jan. 9, 2018) (denying motion for de-
fault judgment because movant failed to comply with the Local
Civil Rules).
Local Civil Rule 55.2 requires that in seeking a default judgment,
the movant must file certain materials. In pertinent part, subsec-
tion (a) provides that the movant "must'' file: (1) "an affidavit or
declaration showing that'' (i) "the [C]lerk has entered a default
under Local Civil Rule 55.1," (ii) the movant "has complied with
the Servicemembers Civil Relief Act, 50a U.S.C. § 521," and
(iii) "the party against whom judgment is sought is not known to
be a minor or an incompetent person"; and (2) "a certificate of
service stating that all documents in support of the request for
default judgment ... have been personally served on, or mailed
to the last known . . . business address . . . of, the party against
whom default judgment is sought." Loe. Civ. R. 55.2(a)(l), (3).
In addition, subsection (c) requires that the movant also "file a
statement of damages, sworn or affirmed to by one or more peo-
ple with personal knowledge, in support of the request, showing
the proposed damages and the basis for each element of dam-
ages, including interest, attorney's fees, and costs." Loe. Civ. R.
55.2(c). "[T]he courts in this District have repeatedly held that a
movant's failure to comply with Local [Civil] Rule 55.2 warrants
denial of default judgment application." Lugo v. Allstate Ins. Co.,
No. 19-CV-7150 	(JMA) (JMW), 	2022 	WL 	3928727, 	at 	*5
(E.D.N.Y. Aug. 10, 2022) (collecting cases), report and recom-
mendation adopted, 2022 WL 3914981 (E.D.N.Y. Aug. 31, 2022).
Importantly, a movant is not entitled to default judgment simply
because a party is in default; rather, the court must "supervise"
the default judgment with "extreme care" to avoid any "miscar-
riage[] of justice." See Erwin DeMarino Trucking Co. v. Jackson,
838 F. Supp. 160, 162 (S.D.N.Y. 1993). In exercising this super-
vision, 	the 	court has 	significant discretion and 	considers 	a
number of factors. See Fed. R. Civ. P. 54(c); see also Au Bon Pain
6
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Corp. v. ArtectJ Inc., 653 F.2d 61, 65 (2d Cir. 1981) (observing
the court's discretion and discussing the factors). Those factors
include, for example, whether the grounds for default are "clearly
established," whether the claims were adequately pleaded in the
complaint such that the defaulting party was "on notice," and the
"amount of money potentially involved." Gomez v. W. Shore Inn
Rest.J Inc., No. 22-CV-0277 (EK) (CLP), 2023 WL 5337864, at *3
(E.D.N.Y. June 30, 2023), report and recommendation adopted,
2023 	WL 	5334415 	(E.D.N.Y. 	Aug. 	18, 	2023); 	see also
Com. Lender LLC v. 413 Greene Realty 2014 Corp., No. 22-CV-
2910 (HG) (PK), 2023 WL 7000877, at *3 (E.D.N.Y. Sept. 7,
2023) ("A court possesses significant discretion in granting a mo-
tion for default judgment, including whether the grounds for
default are clearly established and the amount of money poten-
tially involved.").
In considering whether to grant the requested default judgment
in this case, Judge Pollak adequately considered these factors.
First, she found that it is "beyond dispute" that McDonald is in
default, that McDonald "failed to respond to any of [Holcim] 's
motions for default judgment," and that McDonald "also failed to
submit any evidence ... relating to the calculation of damages."
(R&R at 7.) Seeing no clear error on these findings, the court
adopts the recommendation that "McDonald be deemed to have
defaulted in fact." (Id.) Second, Judge Pollak also found that
Holcim adequately alleged a breach of contract claim against
McDonald under New York law, thereby placing McDonald on
notice. (Id. at 8.) Having found no clear error in Judge Pollak's
liability analysis, the court also adopts this finding. Third, and as
discussed in more detail below, Judge Pollak also sufficiently and
correctly considered the amount of money involved in this case.
Judge Pollak also found that Holcim complied with the Local
Civil Rules because it submitted alongside this third motion for
default judgment: (1) a signed declaration attesting to the facts
7
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set forth in Rule 55.2(a)(l), (id. at 3 (citing Hambidge Deel.
(Dkt. 39-5)); (2) a certificate of service, demonstrating compli-
ance with Rule 55.2(a) (3), (id. at 4 (citing Certificate of Serv.
(Dkt. 39 at ECF p.4))); and (3) a signed declaration of damages,
complying with Rule 55.2(c), (id. (citing Davis Deel. (Dkt. 39-4)).
Having found no clear error with this reasoning, the court adopts
the finding that Holcim has complied with the Local Civil Rules.
For the above reasons, the court adopts Judge Pollak's recom-
mendation to grant Hakim's third motion for default judgment
because: (1) McDonald is, in fact, in default; (2) the allegations
in the Complaint put McDonald on notice; and (3) Holcim com-
plied with the applicable procedural rules.
B. 	Damages
For the following reasons, the court adopts Judge Pollak's recom-
mendation that this court enter a default judgment in the amount
of$ 951,132.34 with post-judgment interest accruing pursuant to
Section 1961.
Upon the entry of a default judgment, the movant bears the bur-
den of establishing its entitlement to damages. See Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158, 161
(2d Cir. 	1992), cert. 	denied, 506 U.S. 	1080 (1993); see also
Paulino v. 	S &P Mini Mkt. 	Corp., 	791 F. Supp. 3d 457, 464
(S.D.N.Y. 2025) (same). "The evidence [it] submits must be ad-
missible." Bums v. Scott, 635 F. Supp. 3d 258, 272 (S.D.N.Y.
2022); see also Paulino, 791 F. Supp. 3d at 464 (same). If that
evidence provides "a 'sufficient basis from which to evaluate the
fairness of' the requested damages," the court "need not conduct
an evidentiary hearing." Bums, 635 F. Supp. 3d at 272 (quoting
Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.
1989)); see also Paulino, 791 F. Supp. 3d at 464 (same). The
court must merely "ensure that there is a basis for the damages
specified in a default judgment." Fustok v. Conticommodity Servs.,
8
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Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988), affd, 873 F.2d 38
(2d Cir. 1989).
Here, Holcim has provided sufficient, admissible evidence (in-
cluding 	50 	invoices 	it 	generated 	for 	McDonald's 	account)
pertaining to the damages that it incurred. (See Invoices (Dkt. 1-
3); see also Sworn Verification of Donald Davis (Dkt. 1) at 6 (stat-
ing that these records are "maintained by [Holcim] in its ordinary
course of business" and are "true and correct based upon [his]
present knowledge, information, and belief'); Holcim's Letter
Pursuant to Feb. 19, 2025 Order ("Holcim's Suppl. Damages Let-
ter") 	(Dkt. 34) 	at 1-2 	(clarifying Holcim's calculation of the
requested damages amount).) Where, as here, the defendant has
failed to make an appearance, the court can make an informed
recommendation regarding 	damages without an evidentiary
hearing. See Paulino, 791 F. Supp. 3d at 464 (concluding that "a
hearing is unnecessary'' if the movant's "submissions have not
been contested and they provide all the information required to
determine [the plaintiff] 's damages").
Having found no clear error in Judge Pollak's damages calcula-
tion, the court enters a default judgment against McDonald in
the amount of $951,132.34 with post-judgment interest accruing
pursuant to Section 1961. 3 See Doe v. E. Lyme Bd. of Educ.,
No. 21-28, 2024 WL 1152494, at *2 (2d Cir. Mar. 18, 2024)
3 On February 19, 2025, Judge Pollak ordered supplemental briefing on
Holcim's calculation of its requested damages amount. (See Text Order
Dated 2/19/2025.) Holcim's response clarified apparent discrepancies be-
tween this amount ($951,132.34), the total amount "due and owing"
listed in the account summary attached to the Complaint ($964,473.39),
and the total amount listed in the invoices attached to the Complaint
($1,104,305.75). (Holcim's Suppl. Damages Letter at 1-2 & n.3.) As the
requested damages amount equals the difference of the total amount "due
and owing" ($964,473.39) and the amount of the charges that Holcim has
decided to "forgo collection" on ($13,341.05), the court finds no clear er-
ror in Judge Pollak's damages calculation.
9
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s/Nicholas G. Garaufis
(summary order) ("Pursuant to 28 U.S.C. § 1961, the award of
post-judgment interest is mandatory on awards in civil cases as
of the date judgment is entered.") (quoting Tru-Art Sign Co.
v. Loe. 137 Sheet Metal Workers Int'l Ass'n, 852 F.3d 217, 223
(2d Cir. 2017) (adding that "Section 1961's terms do not permit
of the exercise of judicial discretion in its application")).
IV. CONCLUSION
For the above reasons, the court ADOPTS the R&R IN FULL. Con-
sequently, 	the 	court 	GRANTS 	Holcim's 	motion 	for 	default
judgment against McDonald, and AWARDS Holcim damages in
the amount of $951,132.34 with post-judgment interest, which
shall be calculated from the date of entry of judgment by the
Clerk of Court, in accordance with 28 U.S.C. § 1961. The court
respectfully DIRECTS the Clerk of Court to enter a judgment con-
sistent with this Memorandum and Order.
SO ORDERED.
Dated: 	Brooklyn, New York
February !:J__ , 2026
10
NICHOLAS G. GARAUFI
United States District Ju 	e
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
HOLCIM SOLUTIONS AND PRODUCTS
US, LLC, f/k/a FIRESTONE BUILDING
PRODUCTS COMPANY, LLC,
Plaintiff,
-against-
MCDONALD METAL & ROOFING
SUPPLY CORP.,
Defendant.
---------------------------------------------------------X
POLLAK, United States Magistrate Judge:
REPORT AND
RECOMMENDATION
23 CV 4448 (NGO) (CLP)
On June 15, 2023, plaintiff Holcim Solutions and Products US, LLC, f/k/a Firestone
Building Products Company ("plaintiff' or "Holcim"), commenced this action against defendant
McDonald Metal & Roofing Supply Corp. ("defendant" or "McDonald"), seeking damages for
breach of contract and unjust enrichment. (Compl. 1).
Currently pending before the Court is plaintiffs third Motion for default judgment. (ECF
No. 39). For the reasons set forth below, the Court respectfully recommends that plaintiffs
Motion be granted.
BACKGROUND
The factual background to this lawsuit is set forth in greater detail in this Court's prior
Report and Recommendation, 2 issued July 14, 2024, and is incorporated by reference herein.
In short, plaintiff Holcim sells roofing and building solutions. (Compl. ,r 8). From time
1 Citations to "Comp!." refer to plaintiffs Verified Complaint for Breach of Contract and Unjust
Enrichment, filed June 15, 2023. (ECF No, 1).
2 Citations to "Report" refer to the Court's prior Report and Recommendation, issued on July 14, 2024
(ECF No. 27).
1
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to time, plaintiff alleges that defendant requested to purchase roofing and building products,
which plaintiff agreed to sell and deliver. (Id. ,r 9). From approximately October 30, 2018,
through January 31, 2022, plaintiff allegedly sold and delivered goods valued at $951,132.34 per
defendant's request, and these transactions were reflected in invoices issued to defendant. (Id. ,r,r
10, 11, 12, Ex. A). Plaintiff alleges that defendant failed to pay for the products plaintiff
delivered to defendant, and asserts two claims: (1) breach of contract in the amount of
$951,132.34 (Count I); and in the alternative (2) unjust enrichment based on defendant's
nonpayment for goods sold by plaintiff (Count II).
Defendant was served on November 10, 2023, by service upon the New York State
Secretary of State. (ECF No. 17). When defendant failed to answer the Complaint or appear to
defend the case, a default was entered by the Clerk of Court on December 28, 2023. (ECF No.
26). Plaintiff thereafter filed a motion for default judgment (ECF No. 21), which was later
referred to the undersigned by the Honorable Nicholas G. Garaufis. (See ECF Order dated April
17, 2024).
On July 14, 2024, this Court issued a Report and Recommendation, recommending that
plaintiffs motion be denied without prejudice to refile in accordance with Local Rules of the
United States District Courts for the Southern and Eastern Districts of New York ("Local Civil
Rules") 7.1 and 55.2. (Report at 7). Overruling plaintiffs objection (see ECF No. 28), the
district court adopted the Report on August 30, 2024. (ECF No. 31).
By Notice of Motion filed on August 26, 2024, plaintiff renewed its motion for default
judgment, accompanied by a copy of the Clerk's Certificate of Default, the Verified Complaint, a
proposed form of judgment, a Memorandum of Law, and supporting exhibits in compliance with
Local Civil Rules 7.1 and 55.2. (See ECF No. 30). Plaintiffs renewed motion for default
2
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judgment was also referred to the undersigned by the Honorable Nicholas G. Garaufis. (See
ECF Order dated September 12, 2024).
On October 24, 2024, this Court issued an Order indicating that plaintiffs motion would
be decided based on plaintiffs submissions, unless defendant requested a hearing and/or
submitted papers in response to plaintiffs motion by November 22, 2024. Defendant did not
respond to the renewed motion and did not contact the Court to request a hearing.
On February 19, 2025, the Court Ordered plaintiff to submit a supplemental letter
regarding its calculation of its requested damages (see ECF Order dated February 19, 2025),
which plaintiff submitted on February 26, 2025 (ECF No. 34).
The Court recommended to the district judge in a February 27, 2025, Report and
Recommendation, that default judgment be entered against defendant. (ECF No. 35). On March
27, 2025, the district court rejected this Court's Report and Recommendation, on the grounds
that plaintiff had failed to comply with Local Civil Rules 55.2(a)(l), (a)(3), and 55.2(c). (ECF
No. 36). The district court also noted updates to these Local Civil Rules as of January 2, 2025,
but noted that Rule 55.2 had not changed since the July 1, 2024, update. (Id. at 6, n.4). The
district court granted plaintiff leave to file a renewed motion, and on May 9, 2025, plaintiff filed
its third Motion for default judgment (ECFNo.39), which was thereafter referred to the
undersigned on May 12, 2025. (ECF Order dated May 12, 2025).
As required by Local Civil Rule 55.2(a)(l), plaintiff has submitted with its third Motion a
signed Declaration by Todd R. Hambidge, attesting to the following facts: the Clerk of Court
entered a Certificate of Default under Local Civil Rule 55.1 on December 28, 2023; plaintiff has
complied with the Servicemembers Civil Relief Act, 50 U,S.C. § 521; and defendant is a
company, and therefore not a minor or incompetent person. (ECF No. 39-5). The Declaration is
3
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accompanied by a Certificate of Service for that document. (Id. at 2).
In accordance with Local Civil Rule 55.2(a)(3), plaintiffs counsel, Blake D. Roth, has
submitted a Certificate of Service along with plaintiffs Motion, certifying that, "as of May 9,
2025, all documents in support of the request for default judgment, including the 'Clerk's
Certificate of Default' and any papers required by Local Civil Rule 55.2 have been personally
served on, or mailed to the last known business address of, Defendant, against whom default
judgment is sought." (ECF No. 39 at 4). Plaintiff has hereby demonstrated compliance with
Local Civil Rule 55.2(a)(3).
Local Civil Rule 55.2(c) requires a party moving for default to file a statement of
damages "sworn or affirmed to by one or more people with personal knowledge." Plaintiff has
now submitted a statement of damages that complies with this rule, signed and attested to by
Don Davis, the Senior Finance Manager - Order to Cash at Holcim Solutions and Products US,
LLC. (ECF No. 39-4). Included with that declaration is proof of service of the statement of
damages on defendant, in compliance with Local Civil Rule 55.2(a)(3). Mat 3).
The Court finds that plaintiff has now complied with the Local Civil Rules in accordance
with the district court's Order. Accordingly, for the same reasons that this Court recommended
granting plaintiffs second motion for default judgment, the Court recommends granting
plaintiffs third Motion for default judgment.
DISCUSSION
I. 	Default
Rule 55(a) of the Federal Rules of Civil Procedure provides that "[w]hen a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ.
P. 55(a). Rule 55 sets forth a two-step process for the entry of default judgment. See Enron Oil
4
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Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First, the Clerk of Court enters the default
pursuant to Rule 55(a) by notation of the party's default on the Clerk's record of the case. See
id. Second, after the Clerk of Court enters a default against a party, if that party fails to appear or
otherwise move to set aside the default pursuant to Rule 55(c), the court may enter a default
judgment. See Fed. R. Civ. P. 55(b).
Providing guidance as to when a default judgment is appropriate, the Second Circuit has
cautioned that since a default judgment is an extreme remedy, it should only be entered as a last
resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 19 81); see also Sheet Metal, Air, Rail &
Transp. Workers Loe. Union No. 127 v. Frank Torrone & Sons, Inc., No. 14 CV 2224, 2018 WL
4771897, at *4 (E.D.N.Y. Oct. 3, 2018), report and recommendation adopted by, 2018 WL
6161655 (E.D.N.Y. Sept. 4, 2018). While the Second Circuit has recognized the "push on a trial
court to dispose of cases that, in disregard of the rules, are not processed expeditiously [and] ...
delay and clog its calendar," it has held that the district court must balance that interest with its
responsibility to "[afford] litigants a reasonable chance to be heard." Enron Oil Corp. v.
Diakuhara, 10 F.3d at 95-96. Thus, in light of the "oft-stated preference for resolving disputes
on the merits," default judgments are "generally disfavored," and "doubts should be resolved in
favor of the defaulting party." Id. See also Erwin DeMarino Trucking Co. v. Jackson, 838 F.
Supp.160, 162 (S.D.N.Y. 1993) (noting that courts must "supervise default judgments with
extreme care to avoid miscarriages of justice"). Furthermore, "[Rule 55(b )] states that a
judgment by default 'may' be entered under specified circumstances, not that it must." Erwin
DeMarino Trucking Co. v. Jackson, 838 F. Supp. ad 62. Accordingly, plaintiffs are not entitled
to a default judgment as a matter of right simply because a party is in default. See, e.g., id.
5
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Courts have significant discretion and may consider a number of factors in deciding
whether to grant a default judgment, including: (1) whether the claims were adequately pleaded
in the complaint, thereby placing the defendants on notice, see Fed. R. Civ. P. 54(c) (stating "[a]
default judgment must not differ in kind from, or exceed in amount, what is demanded in the
pleadings"); King v. STL Consulting LLC, No. 05 CV 2719, 2006 WL 3335115, at *4-5
(E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not violated in awarding damages that
accrued during the pendency of a litigation, so long as the complaint put the defendant on notice
that the plaintiff may seek such damages); (2) "whether the grounds for default are clearly
established," Jeremiah v. 5 Towns Jewish Times, Inc., No. 22 CV 5942, 2023 wt 6593997, at
*2 (E.D.N.Y. Aug. 9, 2023) (quoting Hirsch v. Innovation Int'l, Inc., No. 91 CV 4130, 1992 WL
316143, at *2 (S.D.N.Y. Oct. 19, 1992)); and (3) the amount of money potentially involved-
"the more money involved, the less justification for entering the default judgment." Id.
Additionally, courts may consider whether material issues of fact remain, whether the facts
alleged in the complaint state a valid cause of action, whether the plaintiff has been substantially
prejudiced by the delay involved, and whether the default judgment might have a harsh effect on
the defendants. See Pacific M. Int'l Corp. v. Raman Int'l Gems, Ltd., No. 10 CV 9250, 2012
WL 3194968, at *5 (S.D.N.Y. Aug. 7, 2012).
When a default judgment is entered, the defendant is deemed to have admitted all well-
pleaded allegations in the complaint "except those relating to damages." Jeremiah v. 5 Towns
Jewish Times, Inc., 2023 WL 6593997, at *3 (quoting Au Bon Pain Corp. v. Artect, Inc., 653
F.2d 6L 65 (2d Cir. 1981 )). However, "a district court has discretion ... to require proof of
necessary facts and need not agree that the alleged facts constitute a valid cause of action." Au
Bon Pain Corp. v. Artect, Inc., 653 F.2d at 65.
6
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Here, it is beyond dispute that defendant is in default. Despite proper service, defendant
has not responded to the Complaint, nor has defendant retained an attorney to represent it in this
action. The failure of a corporate defendant to obtain counsel constitutes a failure to defend
because a corporation cannot proceed prose in federal court. See Bravado Int'l Grp. Merch.
Servs., Inc. v. Ninna, Inc., 655 F. Supp~ 2d 177, 188 (E.D.N.Y. 2009) (noting that "it is well-
established that a corporation may not appear in the Second Circuit unless represented by
counsel" (citing Shapiro, Bernstein & Co. v. Cont'l Record Co., 386 F.2d 426,421 (2d Cir.
1967) (per curiam))); see also Grace v. Bank Leumi Trust Co. ofN.Y., 443 F.3d 180,192 (2d
Cir. 2006); Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20,22 (2d Cir. 1983) (discussing
the rationale for requiring corporations, as "artificial" entities, to appear only through counsel).
Furthermore, defendant has failed to respond to any of plaintiffs motions for default
judgment. Defendant has also failed to submit any evidence to this Court relating to the
calculation of damages. See Hirsch v. Innovation Int'l, Inc., 1992 WL 316143, at *2 (holding
that "[the defendant's] default is crystal clear- it does not even oppose this motion").
Accordingly, the Court respectfully recommends that defendant McDonald be deemed to
have defaulted in fact.
II. 	Liability
Plaintiffs Complaint sets forth facts, which, if true, establish plaintiffs claim that
defendant breached the terms of its agreement with plaintiff by accepting goods from plaintiff
and failing to pay for them. (See Comp I., Count I). In a diversity case, courts in the Second
Circuit apply the substantive law of the forum state, which is New York in this case. See Omega
Engineering, Inc. v. Omega, S.A., 432 F.3d 437~ 443 (2d Cir. 2005). Under New York law, a
party alleging an action for breach of contract must prove the following: "( 1) a contract; (2)
performance of the contract by one party; (3) breach by the other party; and (4) damages." First
7
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Investors Corp. v. Liberty Mut. Ins. Co., l 52 F 3d 162, 168 (2d Cir. 1998) (quoting Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522,525 (2d Cir. 1994)).
Accepting plaintiff's allegations as true for purposes of this Motion, plaintiff has alleged
the existence of an agreement for the purchase of goods by defendant from plaintiff, as
evidenced by the invoices attached as Exhibit A to the Complaint. (Compl. ,r,r 9-12 & Ex. A).
Plaintiff has also sufficiently alleged the second and third elements of the claim by alleging that
plaintiff performed under the agreement by delivering the goods, which were then accepted by
defendant, but defendant breached the agreement by failing to pay. (Id. ,r,r 14, 15). Finally,
plaintiff alleges that it has been damaged in the amount of $951,132.34. (Id. ,r,r 11, 17, 19).
The Court finds that plaintiff has adequately alleged a breach of contract claim that is
sufficient to warrant entry of default judgment in plaintiff's favor. 3 These "uncontroverted
allegations, without more, establish the defendant's liability on the asserted cause of action."
Allstate Ins. Co. v. Tapper, No. 14 CV 5410, 2015 WL 6869702, at *5 (E.D.N.Y. Nov. 9, 2015)
(quoting Mateo v. Universal Language Corp., No. 13 CV 2495, 2015 WL5655689, at *4
(E.D.N.Y. Sept. 4, 2015)). Accordingly, it is respectfully recommended that a default judgment
enter against defendant McDonald.
III. 	Damages
A. Legal Standard
Once a court determines that default judgment should enter, the plaintiff must still
establish its entitlement to the damages sought. See Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.
3 Although plaintiff has also adequately alleged a claim ofunjust enrichment, see, e.g., Kaye v. Grossman,
202 F.3d611, 616 (2d Cir. 2000), "the existence of a valid and enforceable written contract governing a particular
subject matter ordinarily precludes recovery in quasi-contract for events arising out of the same subject matter."
Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382,388,516 N.E.2dl90, 521 N.Y.S.2d 653 (1987).
Accordingly, the Court need not address damages under the unjust enrichment claim.
8
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1974) (holding that "[w]hile a default judgment constitutes an admission of liability, the quantum
of damages remains to be established by proof unless the amount is liquidated or susceptible of
mathematical computation"); Wing v. East River Chinese Rest., 884 F. Supp. 663,669
(E.D.N.Y. 1995) (explaining that "[a]lthough the default establishes a defendant's liability,
unless the amount of damages is certain, the court is required to make an independent
determination of the sum to be awarded"). Unlike with the question of liability, a defaulting
defendant is not deemed to have admitted all well-pleaded allegations concerning damages. See
Jeremiah v. 5 Towns Jewish Times, Inc., 2023 WL 6593997, at *3. Thus, the plaintiff must still
prove damages in a manner that provides defendants with an opportunity to contest the claimed
damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155,158 (2d
Cir. 1992), cert. denied, 506 tJ.S.1080 (1993).
When a court enters a default judgment and the amount of damages sought does not
consist of a sum certain, the court is permitted to "conduct hearings" or make referrals as
necessary. Fed. R. Civ. P. 55(b)(2)(B). While "the court must ensure that there is a basis for the
damages specified in a default judgment, it may, but need not, make the determination through a
hearing." United States v. Richardson, No. 17 CV 2982, 2018WL4138934, at *3 (E.D.N.Y.
Feb. 13, 2018) (quoting Fustok v. Conticommodity Servs., Inc., 122 F.RJ). 151, 156 (S.D.N.Y.
1988) (collecting cases), affd, 873 F.2d 38 (2d Cir. 1989)), report and recommendation adopted,
2018 WL 4119518 (E.D.N.Y. Aug. 29, 2018).
B. Calculation of Damages
Plaintiff seeks $951,132.34 in damages, which is the alleged value of the goods that
defendant accepted from plaintiff without tendering payment. (Pl.'s Mem. 4 at 1, 9). In support
4 Citations to "Pl. 's Mem." refer to Plaintiffs Memorandum of Law in Support of Plaintiffs Third Motion
for Default Judgment, filed on May 9, 2025 (ECF No.40).
9
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of the damages request, plaintiff relies on an account summary and 50 invoices it generated for
defendant's account. (See Pl.'s Mem. at 2 (citing Compl. ,r,r 11-12 & Ex. A)). Donald Davis,
plaintiffs Manager of Order to Cash, submitted a sworn Verification, dated May 31, 2023,
stating that these business records are maintained in plaintiffs ordinary course of business, and
that the records are "true and correct based upon [his] present knowledge, information, and
belief." (Compl. at 6).
The invoices detail various product shipments made to defendant between March 27,
2018 and January 3, 2022 (see Compl., Ex. A), while the account summary lists invoices, finance
charges, damaged goods, and a rebate. (Id.) The individual invoices total $1,104,305.75, but the
account summary indicates that the "Total Owing" on defendant's account is $964,473.39. (Id.)
According to plaintiffs supplemental filing dated February 26, 2025, the "Total Owing" also
reflects rebate credits of $135,860.65 "based upon purchases made in the year 2021 [,]" "a single
invoice in the amount of $350.00 that was inadvertently" excluded from the Complaint, and
$1,591.84 related to "a reverse of prior credits provided to [d]efendant by [p]laintiff[.]" (Supp.
Ltr. 5 at 2). Plaintiff decided to "forego collection of the finance charges in the aggregate amount
of$13,341.05[,]" which yields plaintiffs requested damages amount of $951,132.34 when
deducted from the "Total Owing." (Id. at 1-2).
Accordingly, it is respectfully recommended that a default judgment enter against
defendant McDonald in the amount of $951,132.34.
5 This Court Ordered supplemental briefing as to how plaintiff calculated its requested damages amount in
order to clarify apparent discrepancies between the invoices and the account summary. (See Docket Order, dated
February 19, 2025). Plaintiffs supplemental filing, which was filed on February 26, 2025 (ECF No. 34) ("Supp.
Ltr."), assuaged the Court's concerns. However, the Court notes that one entry on the account summary appears to
be misplaced. Without Invoice No. 91119739, dated October 22, 2019 and including a total of$799.88, plaintiffs
calculations are accurate. As such, the Court disregards this entry.
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CONCLUSION
Accordingly, the Court respectfully recommends that plaintiffs third Motion for default
judgment be granted, and that a default judgment enter against defendant McDonald in the
amount of $951,132.34. The Court also recommends that plaintiff be granted post-judgment
interest pursuant to 28 U.S.C. § 196l(a). 6
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. See
28 U.S.C. 636(b)(l); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method
for computing time). Failure to file objections within the specified time waives the right to
appeal the district court's order. See, e.g., Caidor v. Onondaga Cnty, 517 F.3d 601,604 (2d Cir.
2008).
Plaintiff is Ordered to serve this Report and Recommendation on defendant and file proof
of service on the docket immediately thereafter. The Clerk is directed to send copies of this
Report and Recommendation to the parties either electronically through the Electronic Case
Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
December 19, 2025 	Isl Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York
6 In its Complaint, plaintiff also requests "all applicable service fees and court costs" (Comp!. ,r 19), but
plaintiff does not include documentation or legal authority related to this category of damages in its motion for
default judgment. As such, the Court does not make a recommendation as to this request.
11
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