Ascentium Capital LLC v. Full Speed Auto Group Inc. et al
| Ascentium Capital LLC |
| Full Speed Auto Group Inc., Igor Datiev and Miraida Datieva |
| Regions Bank |
| 1:2022cv07559 |
| December 13, 2022 |
| US District Court for the Eastern District of New York |
| Sanket J Bulsara |
| Diane Gujarati |
| Contract: Other |
| 28 U.S.C. § 1332 Diversity-Breach of Contract |
| None |
Docket Report
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| Filing 32 AFFIDAVIT/DECLARATION in Support re #30 Notice of MOTION for Default Judgment as to Damages filed by Ascentium Capital LLC. (Attachments: #1 Exhibit A (Invoice of Past Due Payments), #2 Exhibit B (Chart Listing Net Present Value Rates), #3 Exhibit C (Site Inspection Invoice)) (Siller, Margaret) |
| Filing 31 MEMORANDUM in Support re #30 Notice of MOTION for Default Judgment as to Damages filed by Ascentium Capital LLC. (Siller, Margaret) |
| Filing 30 Notice of MOTION for Default Judgment as to Damages by Ascentium Capital LLC. (Attachments: #1 Proposed Order) (Siller, Margaret) |
ORDER: Plaintiff's counsel called the Court's Chambers today following issuance of the text Order dated September 22, 2023. Calls to the Court are prohibited in the absence of an emergency. (Individual Practices I.B). The purpose of the call was to alert the Court to the filing of a Certificate of Merger with the prior application to substitute. (Certificate of Merger dated Mar. 8, 2023, attached as Ex. C to Aff. in Supp. of Mot. to Substitute Party, Dkt. No. 22). Although Movant Regions Bank submitted a certificate of merger, that document does not establish that the contractual rights previously held by Plaintiff now may be asserted by the new entity Regions Bank. Indeed, it is for that reason that the Court issued its prior order and did not list "Certificate of Merger" among the documents that would establish the transfer of such rights. The agreement containing the relevant provisions, or a similar document evincing the same, is required. So Ordered by Magistrate Judge Sanket J. Bulsara on 9/25/2023. (AL)
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| Filing 29 DECLARATION re Order Adopting Report and Recommendations,,,,,,,,,, Order on Motion for Default Judgment,,,,,,,,,, Order on Report and Recommendations,,,,,,,,, by Ascentium Capital LLC (Attachments: #1 Exhibit L (Certified Mail Receipts)) (Siller, Margaret) |
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ORDER: The motion to substitute a party #20 is hereby denied without prejudice to renewal. Movant Regions Bank claims that it is the successor in interest by merger to Plaintiff Ascentium Capital LLC. However, Regions Bank does not include the merger agreement in its motion, nor does it provide any other evidence of a lawful merger. Any future motion to substitute must include the merger agreement or any other document evincing the transfer of the contractual rights at issue in this case. So Ordered by Magistrate Judge Sanket J. Bulsara on 9/22/2023. (AL)
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ORDER ADOPTING REPORT AND RECOMMENDATION for #11 Motion for Default Judgment:On August 28, 2023, Magistrate Judge Sanket J. Bulsara issued a Report and Recommendation ("R&R") recommending that the motion for default judgment brought pursuant to Federal Rule of Civil Procedure 55(b) by Plaintiff Ascentium Capital LLC, ECF No. 11, be granted in part and denied in part. See generally R&R, ECF No. 27. Specifically, the R&R recommended that Plaintiff's motion for default judgment be granted with respect to liability on Plaintiff's breach of contract claims (Counts I, II, IV, and V), and denied without prejudice in all other respects, including as to liability on the account stated (Count III) and replevin (Count VI) claims, and as to damages. See R&R at 19-20.No objection to the R&R has been filed and the time for filing objections has passed. See R&R at 20; see generally docket.A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). To accept those portions of an R&R to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Lorick v. Kilpatrick Townsend & Stockton LLP, No. 18-CV-07178, 2022 WL 1104849, at *2 (E.D.N.Y. Apr. 13, 2022) (quoting Ruiz v. Citibank, N.A., No. 10-CV-05950, 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19, 2014)); see also Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011).Having reviewed Judge Bulsara's R&R and having found no clear error, the Court adopts the R&R. Accordingly, Plaintiff's Motion for Default Judgment, ECF No. 11, is GRANTED in part and DENIED in part as set forth in the R&R, see R&R at 19-20.As set forth in the R&R, any renewed motion for default judgment that seeks additional liability determinations or damages shall be filed no later than 30 days from the date of this Order. See R&R at 20. Plaintiff is directed to serve a copy of this Order on Defendants and to file proof of service by September 26, 2023.Ordered by Judge Diane Gujarati on 9/21/2023. (AC)
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| Filing 28 DECLARATION Regarding Proof of Service by Ascentium Capital LLC (Attachments: #1 Exhibit K - Certified Mail Receipts) (Siller, Margaret) |
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Filing 27
REPORT AND RECOMMENDATION: For the reasons described in the attached R&R, the Court respectfully recommends that Ascentium's motion for default judgment #11 be granted with respect to liability on Ascentium's breach of contract claims (Counts I, II, IV, and V), and denied without prejudice in all other respects, including as to liability on the account stated (Count III) and replevin (Count VI) claims, and as to damages. Any renewed motion for default judgment that seeks additional liability determinations or damages shall be filed no later than 30 days following the District Judge's resolution of the present motion. Any objections to the Report and Recommendation must be filed with the Clerk of Court within 14 days of receipt of this report. Failure to file objections within the specified time may waive the right to appeal any judgment or order entered by the District Court in reliance on this Report and Recommendation. See 28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) ("[F]ailure to object timely to a magistrate[ ] [judge's] report operates as a waiver of any further judicial review of the magistrate[ ] [judge's] decision." (quotations omitted)). Ascentium is directed to serve a copy of this Report and Recommendation on all Defendants and file proof of such service on the record by no later than August 30, 2023. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/28/2023. (IS)
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| Filing 26 AFFIDAVIT/DECLARATION in Support re #11 MOTION for Default Judgment against Defendants Full Speed Auto Group, Inc., Igor Datiev, and Miraida Datieva and Pursuant to Local Rule 55.2(c) filed by Ascentium Capital LLC. (Attachments: #1 Exhibit H - Certified Mail Green Cards, #2 Exhibit I - Delivery Confirmations, #3 Exhibit J - USPS Tracking Search Request) (Siller, Margaret) |
| Filing 25 NOTICE of Change of Address Once the filing has been made, you must login to www.pacer.gov and update your account. (Siller, Margaret) |
| Filing 24 AFFIDAVIT/DECLARATION in Support re #11 MOTION for Default Judgment against Defendants Full Speed Auto Group, Inc., Igor Datiev, and Miraida Datieva and Pursuant to Local Rule 55.2(c) filed by Ascentium Capital LLC. (Attachments: #1 Exhibit G (Certified Mail Receipts)) (Siller, Margaret) |
| Filing 23 MEMORANDUM in Support re #11 MOTION for Default Judgment against Defendants Full Speed Auto Group, Inc., Igor Datiev, and Miraida Datieva Revised Per the Court's June 23, 2023 Order to Show Cause filed by Ascentium Capital LLC. (Siller, Margaret) |
| Filing 22 AFFIDAVIT/DECLARATION in Support re #20 MOTION to Substitute Party Ascentium Capital LLC with Regions Bank filed by Regions Bank. (Attachments: #1 Exhibit Regions Bank Certificate of Corporate Existence, #2 Exhibit Certificate of Formation for Ascentium Capital LLC, #3 Exhibit Certificate of Merger) (Siller, Margaret) |
| Filing 21 MEMORANDUM in Support re #20 MOTION to Substitute Party Ascentium Capital LLC with Regions Bank filed by Regions Bank. (Siller, Margaret) |
| Filing 20 MOTION to Substitute Party Ascentium Capital LLC with Regions Bank by Regions Bank. (Attachments: #1 Proposed Order to Substitute) (Siller, Margaret) |
| Filing 19 DECLARATION re #17 Response to Order to Show Cause of Jerry Noon by Ascentium Capital LLC (Siller, Margaret) |
| Filing 18 DECLARATION re #17 Response to Order to Show Cause by Ascentium Capital LLC (Attachments: #1 Exhibit A - Affidavit of Service on NY Secretary of State, #2 Exhibit B - Excerpts of Public Records) (Siller, Margaret) |
| Filing 17 RESPONSE TO ORDER TO SHOW CAUSE by Ascentium Capital LLC (Siller, Margaret) |
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Filing 16
ORDER TO SHOW CAUSE: The Court issues the attached order to show cause to Plaintiff in connection with its pending motion #11 for default judgment. By 6/30/2023, Plaintiff is directed to show cause as to why service was proper on Full Speed Auto Group Inc., that is, why Lena "Doe" is authorized to accept service of process on behalf of the corporation under either New York law or Federal Rule 4(h)(1)(B). Plaintiff is also directed to show cause why service on the Individual Defendants in New York, and not Florida, was proper. So Ordered by Magistrate Judge Sanket J. Bulsara on 6/23/2023. (MD)
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| Filing 15 NOTICE of Change of Firm Name and Email Address . Once the filing has been made, you must login to www.pacer.gov and update your account. (Siller, Margaret) |
| Filing 14 AFFIDAVIT/DECLARATION in Support re #11 MOTION for Default Judgment against Defendants Full Speed Auto Group, Inc., Igor Datiev, and Miraida Datieva Pursuant to Local Rule 55.2(c) filed by Ascentium Capital LLC. (Attachments: #1 Exhibit F (Certified Mail Receipts)) (Siller, Margaret) |
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ORDER REFERRING MOTION: #11 MOTION for Default Judgment against Defendants Full Speed Auto Group, Inc., Igor Datiev, and Miraida Datieva filed by Ascentium Capital LLC respecfully referred to Magistrate Judge Sanket J. Bulsara for a report and recommendation. Ordered by Judge Diane Gujarati on 2/10/2023. (SS)
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| Filing 13 AFFIDAVIT/DECLARATION in Support re #11 MOTION for Default Judgment against Defendants Full Speed Auto Group, Inc., Igor Datiev, and Miraida Datieva filed by Ascentium Capital LLC. (Attachments: #1 A (Affidavits of Service), #2 B (Certificate of Default), #3 C (Complaint and Exhibits), #4 D (Invoices - Redacted), #5 E (Resumes and Biographies of Billing Attorneys)) (Siller, Margaret) |
| Filing 12 MEMORANDUM in Support re #11 MOTION for Default Judgment against Defendants Full Speed Auto Group, Inc., Igor Datiev, and Miraida Datieva filed by Ascentium Capital LLC. (Siller, Margaret) |
| Filing 11 MOTION for Default Judgment against Defendants Full Speed Auto Group, Inc., Igor Datiev, and Miraida Datieva by Ascentium Capital LLC. (Attachments: #1 Proposed Order) (Siller, Margaret) |
| Filing 10 Clerk's ENTRY OF DEFAULT It appearing from the docket maintained in this action that defendant Igor Datiev, Miraida Datieva, Full Speed Auto Group Inc. has failed to appear or otherwise defend this action, the default of defendant Igor Datiev, Miraida Datieva, Full Speed Auto Group Inc. is hereby noted pursuant to Rule 55a of the Federal Rules of Civil Procedure. (JP) |
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ORDER: Plaintiff shall file a motion for default judgment by no later than 60 days following an entry of default by the Clerk of Court. So Ordered by Magistrate Judge Sanket J. Bulsara on 1/24/2023. (MD)
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| Filing 9 Request for Certificate of Default by Ascentium Capital LLC (Attachments: #1 Declaration of Margaret M. Siller in Support of Request for Certificate of Default, #2 Proposed Certificate of Default) (Siller, Margaret) |
| Filing 8 SUMMONS Returned Executed by Ascentium Capital LLC. Full Speed Auto Group Inc. served on 12/22/2022, answer due 1/12/2023. (Siller, Margaret) |
| Filing 7 SUMMONS Returned Executed by Ascentium Capital LLC. Miraida Datieva served on 12/22/2022, answer due 1/12/2023. (Siller, Margaret) |
| Filing 6 SUMMONS Returned Executed by Ascentium Capital LLC. Igor Datiev served on 12/22/2022, answer due 1/12/2023. (Siller, Margaret) |
| Filing 5 CASE REFERRED TO ARBITRATION:This case has been designated to participate in the non-binding Court Annexed Arbitration Program pursuant to Local Civil Rule 83.7. The Rule requires the Clerk of Court to designate and process for compulsory arbitration "all civil cases (excluding social security cases, tax matters, prisoners' civil rights cases, and any action based on an alleged violation of a right secured by the Constitution of the United States or if jurisdiction is based in whole or in part on Title 28 U.S.C. sec. 1343) wherein money damages only are being sought in an amount not in excess of $150,000.00 exclusive of interest and costs." Damages are presumed not to be in excess of the arbitration limit unless a certification is filed in accordance with Local Civil Rule 83.7. An Arbitration Hearing will be scheduled after an Answer is filed. (RC) |
| CASE REFERRED to Arbitration. (RC) |
| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) |
| Filing 3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (SR) |
| Filing 2 Summons Issued as to All Defendants. (Attachments: #1 Igor Datiev, #2 Miraida Datieva) (SR) |
| Filing 1 COMPLAINT against All Defendants filing fee $ 402, receipt number ANYEDC-16222960 Was the Disclosure Statement on Civil Cover Sheet completed -YES,, filed by Ascentium Capital LLC. (Attachments: #1 Civil Cover Sheet, #2 Proposed Summons Full Speed Auto Group, Inc., #3 Proposed Summons Igor Datiev, #4 Proposed Summons Miraida Datieva, #5 Exhibit A, #6 Exhibit B, #7 Exhibit C) (Siller, Margaret) |
| Case Assigned to Judge Diane Gujarati and Magistrate Judge Sanket J. Bulsara. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (SR) |
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