Cohen v. Rosenthal

Filing 23

ORDER (see attached) that DEFAULT HAS ENTERED in this action and that the Court will entertain Plaintiff's 19 Motion for Default Judgment. As Defendant has already opposed the default judgment motion, 22 , Plaintiff, if he so chooses, may file a reply brief on or before December 9, 2015. Defendant's 20 Motion to Dismiss is DENIED WITHOUT PREJUDICE to refilling if a default judgment is not awarded in this action. Signed by Judge Charles S. Haight, Jr. on November 30, 2015. (White, B.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
JAMES D. COHEN,
Plaintiff,
v.

3:15-cv-01043 (CSH)

EDWARD ROSENTHAL, individually and
as the sole member of ROSENTHAL LAW
FIRM, LLC,
Defendants.

ORDER
HAIGHT, Senior District Judge:
Plaintiff, James D. Cohen, instituted this pro se action against his former attorney, Defendant
Edward Rosenthal, in connection with Defendant's representation of Plaintiff in an effort to recover
on a judgment. The Court enters the instant Order to resolve certain complexities that arose in the
beginning stages of this litigation due in large part—but not entirely to—the Defendant's repeated
failure to adhere to deadlines imposed by the Federal Rules of Civil Procedure.
I.

Background
Plaintiff filed his Complaint in this action on July 8, 2015. Doc. 1. Defendant was served

with it on August 26, 2015, [Doc. 11], and was to respond by September 16, 2015, which he did not
do. On September 17, 2015, after Defendant's deadline to respond had passed, Plaintiff properly
filed a Motion for Default Entry pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.
Doc. 12. The Clerk has yet to enter that default. Rather, Defendant filed an appearance on
September 18, 2015, [Doc. 13], and, on that same day, despite the fact that the date for his
responsive pleading had already passed, filed a motion to extend his time to respond to the complaint

to October 18, 2015, [Doc. 14]. This motion was granted by the Clerk. Doc. 15. Nevertheless,
Defendant also missed this self-selected deadline, leading the Plaintiff to file a second Motion for
Default Entry on October 20, 2015. Doc. 16. The Clerk has also yet to enter that default. On
October 21, 2015, despite that the self-selected extended deadline for his responsive pleading had
passed, the Defendant again filed a motion to extend his time to respond to the Complaint, this time
to November 21, 2015. Doc. 17. This time, the Plaintiff objected to the requested extension, [Doc.
18], and the Court issued no ruling with respect to the request. Nevertheless, Defendant again
missed his self-selected extended deadline, leading Plaintiff to file, on November 23, 2015, a third
request for the Court to enter a default, and, this time, concurrently moved the Court to also enter
default judgment against the Defendant. Doc. 19. Less than two hours later, also on November 23,
2015, Defendant filed a motion to dismiss the complaint without addressing any of the above
procedural history, including the fact that he had now missed three deadlines imposed by the federal
rules, two of which he had selected himself. Doc. 20. On November 24, 2015, the Court issued an
order that further briefing on Defendant's motion to dismiss be held in abeyance pending the instant
Order, which addresses Plaintiff's Motions for Default Entry and Motion for Default Judgment. Doc.
21. Following that order, on November 25, 2015, Defendant filed an opposition brief to Plaintiff's
motion for default judgment and entry of default. Doc. 22.
II.

Entry of Default and Default Judgement
Under the Federal Rules, a default judgment against a non-responsive defendant is secured

in two steps. First, the moving party must show that the non-moving party "has failed to plead or
otherwise defend" within the time allotted by the Federal Rules. Upon such a showing, the Clerk
of Court "must enter the party's default." Fed. R. Civ. P. 55(a) (emphasis added). Second, only after
-2-

the entry of default, and with an exception not relevant here,1 the moving party "must apply to the
court for a default judgment." Fed. R. Civ. P. 55(b)(2). However, a court may elect not to enter
default judgment, and set aside an entry of default, against a non-responsive party for "good cause."
Fed. R. Civ. P. 55(c). In other words, the "decision whether to enter default judgment is committed
to the district court's discretion." Greathouse v. JHS Sec. Inc., 784 F.3d 105, 116 (2d Cir. 2015).
When applying its discretion in setting aside an entry or judgment of default, a district court should
be guided by the following criteria: "(1) the willfulness of default, (2) the existence of any
meritorious defenses, and (3) prejudice to the non-defaulting party." Guggenheim Capital, LLC v.
Birnbaum, 722 F.3d 444, 455 (2d Cir. 2013).
Here, the Plaintiff has moved for default judgment prior to a default being entered on the
docket, which would ordinarily render such a motion premature. However, as made clear above,
default has failed to enter in this case through no fault of the Plaintiff, who has done all that is
required of him under Rule 55(a). Where, as here, 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 default. Fed. R. Civ. P. 55(a) (emphasis added). Through the
instant Order, the Court determines that Plaintiff should not be punished—and Defendant's repeated
failure to adhere to deadlines in this action should not be excused—simply because the office of the
Clerk has not performed its required duty. The Court of Appeals has determined that entry of default
under Rule 55(a) is simply "a ministerial step," City of New York v. Mickalis Pawn Shop, LLC, 645
1

Rule 55(b)(1) allows, in certain circumstances, for the Clerk of Court to enter default
judgment. Here, Plaintiff expressly requests the Court to enter default judgment, [Doc. 19], at 3,
contemplating that the motion is within Rule 55(b)(2). Moreover, the Clerk may only enter
default judgment under Rule 55(b)(1) where the Plaintiff submits "an affidavit showing the
amount due," which Plaintiff did not do here.
-3-

F.3d 114, 128 (2d Cir. 2011), and has allowed default judgment to stand even where no entry of
default was on the docket, Beller & Keller v. Tyler, 120 F.3d 21, 22 n.1 (2d Cir. 1997) ("assum[ing]
that the district court exercised [its] power" "to perform the ministerial function assigned to the clerk
of entering default," where "the docket sheet does not indicate that, as is common practice, a default
was entered by the clerk of the court before the entry of the default judgment").
With these principles in mind, the Court believes the proper course in this instance is to
declare that DEFAULT HAS ENTERED in this action and to entertain Plaintiff's [Doc. 19] Motion
for Default Judgment. As Defendant has already filed an opposition brief to that Motion, Plaintiff,
if it so chooses and pursuant to Local Rule 7(d), may file a reply brief on or before December 9,
2015. A ruling from the Court will follow.
The Court further holds that Defendant's [Doc. 20] Motion to Dismiss is DENIED
WITHOUT PREJUDICE to refiling if a default judgment is not awarded in this action.2
It is SO ORDERED.
Dated: New Haven, Connecticut
November 30, 2015
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

2

Because Defendant filed his motion to dismiss after defaulting (a third time), the Court
will not entertain it at this time. "Entry of default cuts off a defendant's right to appear in the
action, file counterclaims, and present a defense." Wahoo Int'l v. Phix Doctor, Inc., 2014 WL
5465373, at *2 n.1 (S.D. Cal. Oct. 28, 2014) (citing Clifton v. Tomb, 21 F.2d 893, 897 (4th Cir.
1927)); see also J&J Sports Prods. Inc. v. Kuo, 2007 WL 4116209, at *2 (W.D. Tex. Nov. 15,
2007) (entry of default "cuts off the defendant's right to file any document other than a motion to
set aside the entry of default"); Kapadia v. Thompson, 2008 WL 5225813, at *3 (D. Ariz. Dec.
15, 2008) (same); Richard D. Freer, Civil Procedure, Section 7.5.2 (2d ed. 2009) ("Though the
entry of default does not entitle the plaintiff to relief (she needs a judgment for that), it does one
important thing – it cuts off the defendant's right to file a response to the complaint").
-4-