Gesualdi et al v. Quadrozzi Equipment Leasing Corp. et al
MEMORANDUM & ORDER: Defendants' 25 motion to vacate the default judgment is denied. Ordered by Judge Raymond J. Dearie on 7/11/2013. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
THOMAS GESUALDI; LOUIS
BISIGNANO; ANTHONY PIROZZI;
DOMINICK MARROCCO; ANTHONY
D' AQUILA; FRANK FINKEL; JOSEPH
FERRARA; MARC HERBST; THOMAS
CORBETT; and DENISE RICHARDSON,
as Trustees and Fiduciaries of the Local 282
Int'I Brotherhood of Teamsters Welfare,
Pension, Annuity, Job Training, and
Vacation and Sick Leave Trust Funds,
MEMORANDUM & ORDER
II CV lIS (RJD) (VMS)
- against QUAD ROZZI EQUIPMENT LEASING
CORP. and AMSTEL RECYCLING &
DEARIE, District Judge
Defendants Quadrozzi Corporation and Amstel Corporation move under Rule 60(b)(1) to
vacate a default judgment entered against them on December 12, 2012. Defendants' motion,
filed April 23, 2013, is untimely. A motion under Rule 60(b)(l) for relieffromjudgment based
on "eJ(cusable neglect" must be "made within a reasonable time ... and ... no more than a year
after the entry of the judgment." Fed. R. Civ. P. 60(b)(l), (c)(I). "The one-year period
represents an eJ(treme limit, and the motion will be rejected as untimely if not made within a
'reasonable time' even though the one-year period has not eJ(pired." II Wright, Miller, & Kane,
Federal Practice and Procedure § 2866 (2d ed. updated 2012); see also La Barbera v. Whitney
Trucking, Inc., 245 F.R.D. 142, 145 (2007) (Rakoff, J.) (denying Rule 60(b) motion where
defendant first contacted plaintiff 4 months after default judgment and did not appear until 6
Defendants did not oppose plaintiffs' default motion; in fact, defendants did not appear
until they filed this motion, four months after the Court entered judgment against them.
Defendants' excuse-that the sibling officers of the defendant corporations each believed the
other to be in charge of retaining counsel---does not justify their delay. Defendants have long
had notice that a default judgment loomed. Anyone of the following events should have alerted
defendants to the need to prepare an opposition or concede the case:
the Clerk's entry of default on January 31, 2012 (ECF # 15), which Catherine
Quadrozzi (secretary and treasurer to both corporate defendants) admits receiving
(Aff. Catherine Q.,
plaintiffs' motion for default judgment, filed April 20, 2012 (ECF # 18), which
Catherine and her brother John Quadrozzi both admit receiving and discussing
(Aff. Catherine Q.,
28; Aff. John Q.,
and the default judgment itself, entered December 12, 2012 (ECF # 24).
Defendants' motion comes 26 months after service of the complaint; 15 months after the entry of
default; 12 months after plaintiffs' default motion; and 4 months after this Court finally entered a
default judgment. Cf. La Barbera, 245 F .R.D. at 145 (holding that motion filed 14 months after
complaint and II months after default judgment was untimely). Enough is enough.
Even if defendants' delay were reasonable, I would deny their motion to vacate the
default judgment on the merits. "[M]otions under Rule 60(b) should be granted only in
'extraordinary circumstances.'" New Angle Pet Products, Inc. v. Absolutelynew Inc., 2012 WL
5959984, at *2 (E.D.N.Y. Nov. 28, 2012) (Feuerstein, J.) (quoting Stevens v. Miller, 676 F.3d
62,67 (2d Cir. 2012)). Courts consider whether the defaulting party acted willfully and whether
setting aside the default will prejudice the non-movant. See La Barbera, 245 F .R.D. at 146 n.6.
Here, defendants do little to contradict plaintiffs' argument that their default was strategic.
Plaintiffs attach to their brief an email from Catherine Quadrozzi dated April 6, 2011-10
months before entry of default-that states defendants cannot afford counsel and "[i]f possible"
may appear pro se. Whether defendants' delay is attributed to a change in strategy, or the
sibling-officers' oversight, it does not reflect the "extraordinary circumstances" that warrant
upsetting the default judgment. Finality, repose, and an end to this 2011 litigation favor
For the reasons stated above, defendants' motion to vacate the default judgment is
Dated: Brooklyn, New York
July l(, 2013
/s/ Judge Raymond J. Dearie
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