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

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HOLCIM SOLUTIONS AND PRODUCTS
US, LLC, f/k/a FIRESTONE BUILDING
PRODUCTS COMPANY, LLC,
REPORT AND
RECOMMENDATION
23 CV 4448 (NGG) (CLP)
Plaintiff,
-against-
MCDONALD METAL & ROOFING
SUPPLY CORP.,
Defendant.
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POLLAK, United States Magistrate Judge:
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 plaintiff’s third Motion for default judgment. (ECF
No. 39). For the reasons set forth below, the Court respectfully recommends that plaintiff’s
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. ¶ 8). From time
1 Citations to “Compl.” refer to plaintiff’s 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).
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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. ¶ 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. ¶¶
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.
20). 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
plaintiff’s 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 plaintiff’s 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). Plaintiff’s renewed motion for default
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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 plaintiff’s motion would
be decided based on plaintiff’s submissions, unless defendant requested a hearing and/or
submitted papers in response to plaintiff’s 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)(1), (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 (ECF No. 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)(1), 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
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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), plaintiff’s counsel, Blake D. Roth, has
submitted a Certificate of Service along with plaintiff’s 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). (Id. at 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 plaintiff’s second motion for default judgment, the Court recommends granting
plaintiff’s 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
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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. 1981); see also Sheet Metal, Air, Rail &
Transp. Workers Loc. 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. at 162. 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.
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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 WL 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 61, 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.
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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 pro se 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, 427 (2d Cir.
1967) (per curiam))); see also Grace v. Bank Leumi Trust Co. of N.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 plaintiff’s 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
Plaintiff’s Complaint sets forth facts, which, if true, establish plaintiff’s claim that
defendant breached the terms of its agreement with plaintiff by accepting goods from plaintiff
and failing to pay for them. (See Compl., 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
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Investors Corp. v. Liberty Mut. Ins. Co., 152 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. ¶¶ 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. ¶¶ 14, 15). Finally,
plaintiff alleges that it has been damaged in the amount of $951,132.34. (Id. ¶¶ 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 WL 5655689, 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 of unjust enrichment, see, e.g., Kaye v. Grossman,
202 F.3d 611, 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.2d 190, 521 N.Y.S.2d 653 (1987).
Accordingly, the Court need not address damages under the unjust enrichment claim.
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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 U.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, 2018 WL 4138934, at *3 (E.D.N.Y.
Feb. 13, 2018) (quoting Fustok v. Conticommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y.
1988) (collecting cases), aff’d, 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 Plaintiff’s Memorandum of Law in Support of Plaintiff’s Third Motion
for Default Judgment, filed on May 9, 2025 (ECF No. 40).
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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. ¶¶ 11-12 & Ex. A)). Donald Davis,
plaintiff’s Manager of Order to Cash, submitted a sworn Verification, dated May 31, 2023,
stating that these business records are maintained in plaintiff’s 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 plaintiff’s 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 plaintiff’s 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). Plaintiff’s 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, plaintiff’s
calculations are accurate. As such, the Court disregards this entry.
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CONCLUSION
Accordingly, the Court respectfully recommends that plaintiff’s 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. § 1961(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)(1); 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 	/s/ 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” (Compl. ¶ 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.
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