Sarwar v. Swami, LLC

Background

Saim Sarwar applied for a Clerk’s Certificate of Default on January 3, 2022. The Clerk later issued the certificate. The court explained that, before it could schedule a default hearing or issue a default judgment, Sarwar had to submit additional materials, including a statement of damages, an attorney affidavit, copies of the pleadings, and proof of service of the summons and complaint.

Problems Identified by the Court

The court found several serious problems in Sarwar’s Statement of Damages.

First, the court questioned counsel’s billing records. Counsel reported spending 1.6 hours researching the corporate owner’s name and address and 2.5 hours drafting and filing the summons and complaint. The court noted that counsel was experienced in Americans with Disabilities Act litigation and had filed many similar cases, including cases with Sarwar. Based on that experience and the similarities among the complaints, the court questioned whether those amounts of time were reasonable.

Second, the Statement of Damages did not mention the monetary damages requested in the complaint. The complaint sought damages under the New York State Human Rights Law, and its final request sought $1,000 or another amount the court considered just and proper. The Statement instead sought only modification of Swami LLC’s website. The court noted that the federal statute allowing attorney’s fees permits them for a prevailing party and explained that injunctive relief can, by itself, potentially support prevailing-party status, but stated that counsel’s failure to seek the monetary damages described in the complaint could not be disregarded.

Third, the Statement included a re-investigation fee without explaining its purpose, necessity, or cost. The court noted that the initial investigation was billed at $650 and questioned why a second investigation would cost as much as the first, particularly because some work from the first investigation would not need to be repeated.

Order

Judge Kenneth M. Karas ordered counsel to file an explanation within 30 days addressing four matters: the differences between the complaint and summons in this case and those in other cases for which counsel billed 2.5 hours; how counsel obtained Swami LLC’s corporate name and address; why the Statement sought no statutory damages for Sarwar despite the complaint’s references to monetary damages under federal and state law; and the nature, purpose, necessity, and cost of the re-investigation.

The order did not issue a default judgment or state that the court had awarded damages or attorney’s fees. It also directed the Clerk to mail a copy of the order to Swami LLC at the address listed in the return of service.