Jara et al v. Smart & K Construction LLC et al
ORDER of default. See attached. The clerk of the court shall enter default as to defendant Kohut. Plaintiff's motion for default judgment is due within 21 days. Signed by Judge Donna F. Martinez on 7/31/12. (Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LUIS JARA, et al.,
CASE NO. 3:09cv856(DFM)1
ORDER OF DEFAULT
This case was scheduled for a bench trial with evidence to
begin July 31, 2012. The sole remaining defendant, Yaroslav Kohut,
who is appearing pro se, did not appear for trial.
For the reasons
that follow, the court enters default as to the defendant Kohut.
This case has been scheduled for trial for more than a month
and the defendant clearly had notice of the trial dates.
12, 2012, the court held a telephonic conference at which the
plaintiffs were represented by Attorney Goselin and the defendant,
Yaroslav Kohut, represented himself.
During that conference, the
court set the case down for trial.
On June 18, 2012, the court
issued a pretrial order.
That order stated that trial
would begin on July 31, 2012 at 10:00 am in the East Courtroom and
would continue on August 1, 2012 and August 2, if necessary.
addition to stating the trial dates, the court's June 18, 2012
Memorandum by July 12, 2012.
The parties were to set forth in the
The parties consented to the undersigned's jurisdiction for
all purposes. 28 U.S.C. § 636(c). (Doc. #27.)
Joint Trial Memorandum, among other things, a list of the exhibits
and witnesses they proposed to introduce. The order specified that
"exhibits not listed will not be admissible at trial without good
(Doc. #33 at 2.)
On July 12, 2012, the date the Joint Trial Memorandum was due,
plaintiffs filed a trial memorandum. In the memo, they stated that
"[d]espite several attempts by plaintiffs' counsel to contact and
communicate with the pro se defendant," plaintiffs had not received
any response from him.
As a result, the plaintiff's
trial brief only includes the plaintiffs' proposed evidence.
the same time they filed their trial brief, pursuant to Federal
Rule of Civil Procedure 55(a) plaintiffs also filed a motion for
entry of default as a sanction for the defendant's failure to
comply with the court's order. (Doc. #35.)
On July 19, 2012, the court issued an "Order To Show Cause."
(Doc. #36.) The court ordered the defendant to contact plaintiffs'
counsel and file a Joint Trial Memorandum by July 24, 2012.
order warned the defendant that if he failed to comply, he might be
prohibited from introducing evidence, among other sanctions.
Despite the unambiguous court's order, the defendant filed
On July 26, 2012, the plaintiffs filed a renewed motion for
Plaintiffs seek as relief an order entering
default and adjourning trial. Plaintiffs request that their motion
is granted and that they be permitted to move in due course for
default judgment pursuant to Fed. R. Civ. P. 55(b).
Plaintiff's counsel represents that he
spoke with the defendant on July 27, 2012 regarding the trial.
defendant told plaintiffs' counsel that the defendant did not
intend to participate in the trial.
In light of this,
the plaintiffs argue that the court should enter default.
To date, the defendant has not filed anything in response to
the court's orders or plaintiffs' two motions for default.
A party is entitled to an entry of default when the party
against whom relief is sought fails to plead or otherwise defend the
action. Fed. R. Civ. P. 55(a).
"A default is an admission of all
well-pleaded allegations against the defaulting party." Vermont
Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir.
After entry of default, the "second step, entry of a default
judgment, converts the defendant's admission of liability into a
plaintiff any relief to which the court decides it is entitled."
City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d
"A district court is empowered under Rule 55(b)(2), in
the exercise of its discretion, to "conduct hearings or make
referrals" as may be necessary, inter alia, to determine the amount
of damages or establish the truth of the plaintiff's allegations.
"The disposition of motions for entries of defaults and default
judgments . . . are left to the sound discretion of a district
court." Shah v. New York State Department of Civil Service, 168 F.3d
610, 615 (2d Cir. 1999).
Although a "typical Rule 55 case" is one in which "a defendant
failed to file a timely answer," a district court can enter a
default against a defendant who fails to "otherwise defend." City
of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir.
2011); see also Fed. R. Civ. P. 55(a). The Second Circuit has
"embraced a broad understanding of the phrase 'otherwise defend,'
"as it is used in Rule 55(a)." City of New York, 645 F.3d at 129
[their] own defense").
A trial judge, "responsible for the orderly and expeditious
conduct of litigation," has the discretion to impose the sanction
of default on a defendant for non-attendance at a scheduled trial.
See Brock v. Unique Racquetball & Health Clubs, 786 F.2d 61, 64 (2d
"It is appropriate for a district court to declare a
default when a party and its counsel fail to appear at trial after
Fine Shoe Co. v. Buckray, Inc., 131 F.R.D. 58,
59 (S.D.N.Y. 1990).
See also Brock v. Unique Racquetball & Health
Clubs, Inc., 786 F.2d 61, 63–65 (2d Cir. 1986) (affirming default
when counsel failed to appear for trial).
See also Hoxworth v.
Blinder, Robinson & Co., Inc., 980 F.2d 912, 918 (3rd Cir. 1992)
(holding that Rule 55 default can be based on a failure to appear
at trial); Hampton Forge, Ltd. v. Descamps, No. 03-4500(GEB), 2006
WL 469953, at *7 (D.N.J. Feb. 23, 2006)(entering default where
defendants failed to appear at trial conference and informed the
court that they would not appear at trial).
The court is mindful that the defendant is proceeding pro se.
Notwithstanding, the defendant has failed to comply with two court
orders to identify the evidence he intends to introduce.
As to his
attendance at trial, there is no question that the defendant had
actual notice that trial was scheduled to begin today.
plaintiffs' counsel he is not going to participate.
appeared nor contacted the court. Plaintiffs are prepared and ready
By his failure to appear today, the defendant has
demonstrated that he has no intention of defending this action.
the record before the court, the court concludes that default
pursuant to Rule 55(a) should enter.
The plaintiffs' motion for
default judgment shall be filed within 21 days.
SO ORDERED at Hartford, Connecticut this 31st day of July,
Donna F. Martinez
United States Magistrate Judge
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