Olivieri v. Waldbaum, Inc. et al
Minute Order: Appearances by S. Popofsky for plaintiff; N. Catalano for Waldbaum; P. Monier for Sicuranza. As discussed on the record and set forth in a separate order, since default has not been entered, the Court considers treats the submissions r egarding of Sicuranza's late answer under Fed. R. Civ. P. 6(b) and grants him leave nunc pro tunc to file the answer. Mr. Sicuranza's motion for a stay 79 is denied. Discovery is extended to 6/30/14 for the depositi on of two additional Waldbaum employees, Mr. Drain and Ms. Maul, who may be deposed for a total of day for both. This is without prejudice to an application by Sicuranza for leave to continue the deposition of plaintiff. The parties advise they do not intend to have experts. Any party seeking to move for summary judgment must file and send a letter to Judge Townes by 7/18/14 requesting a pre-motion conference and any response must be filed by 7/25/14. FTR: 2:37-3:32 (Moo-Young, Jillian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
OLIVIERI V. WALDBAUM, INC, ET AL.,
CV 2012-1195 (SLT)
This order sets forth rulings made on the record at a
conference held on May 12, 2014 concerning plaintiff's request
filed on March 7, 2014 for a certificate of default against
defendant Richard Sicuranza on a cross-claim for indemnification
and contribution (ct. doc. 72) and Mr. Sicuranza's motion to stay
discovery pending an anticipated motion to dismiss (ct. doc. 79)
as well as oral application for an extension of discovery.
Shortly after plaintiff filed a request for entry of
default, Mr. Sicuranza filed a late answer to the Waldbaum
defendants' cross-claim (ct. doc. 75) on March 11, 2014.
argues that although his prior counsel had failed to file an
answer to the cross-claim, he had clearly indicated his intention
to "defend against all issues raised in these proceedings."
doc. 78 (Letter).
Because default was never entered, the Court treats Mr.
Sicuranza's late answer and subsequent submission as a motion for
leave to file a late answer, properly analyzed under Rule 6(b) of
the Federal Rules of Civil Procedure.
See e.g., Alli v. Steward-
Bowden, 2012 WL 3711581, at *3 (S.D.N.Y. August 24, 2012)
(finding that a late answer filed prior to default being entered
was appropriately analyzed filed under Rule 6);
U.S. v. One 2000
Mercedes Benz Bearing VIN WDBLJ70G0YF127256, 2010 WL 4452096, at
*2-*3 (W.D.N.Y. Sept. 28, 2010) (analyzing the filing of a late
answer under Rule 6).
Under Rule 6(b)(1)(B), the Court, "for
good cause," may grant an extension of time on a motion made
after time has expired to act if the party has failed to act
See Fed. R. Civ. P. 6(b)(1)(B).
because of excusable neglect.
"With regard to determining whether a party's neglect of a
deadline is excusable," courts must "tak[e] account of all
relevant circumstances surrounding the party's omission,"
including "the danger of prejudice to the [non-moving party], the
length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the
movant acted in good faith."
Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993).
By answering the complaint, asserting affirmative defenses
and asserting his own cross-claim against the Waldbaum
defendants, Mr. Sicuranza clearly has demonstrated that he
intended to defend himself against all claims in this action.
his participation in discovery and in his pleadings, Mr.
Sicuranza has effectively provided Waldbaum with "fair notice" of
the defense he now claims in his belated answer.
Intern. Group Merchandising Services, Inc. v. Ninna, Inc., 655 F.
Supp. 2d 177, 187-88 (E.D.N.Y. 2009) (finding that an answer that
"communicates [the defendant's] intent to deny plaintiffs' claim"
was sufficient to provide "fair notice" of his defense).
Waldbaum presents no evidence that it would be prejudiced by
the late answer besides the fact that it would no longer be
relieved of the burden to prove its cross-claim against Mr.
To be sure, permitting entry of default here would be
contrary to the strong preference of the Second Circuit for
resolving cases on the merits.
See, e.g., Pecarsky v.
Galaxiworld.com Ltd., 249 F.3d 167, 172 (2d Cir. 2001); Am.
Alliance Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir.
Although Waldbaum argued at the hearing that it will be
prejudiced by the additional discovery Mr. Sicuranza now seeks,
that discovery pertains to all the claims and defenses raised in
this action, and is not limited solely to the cross-claim of
Significantly, discovery has proceeded in this action
notwithstanding a motion to dismiss filed by Waldbaum and
Waldbaum did not file its answer and cross-claim until October
15, 2013, only after Judge Townes ruled on the motion.
Further, there is no evidence that the delay was willful or
in bad faith.
About a month after Waldbaum asserted the cross
claim, Mr. Sicuranza's prior counsel filed a motion to withdraw.
Although attorney error is ordinarily not a basis for a finding
of excusable neglect, given the uncertainty over the issue of
representation, this Court declines to charge Mr. Sicuranza with
the oversight on the part of his prior counsel.
In sum, this Court grants Richard Sicuranza an extension of
time, nunc pro tunc, to March 11, 2014 to file his answer.
Accordingly, plaintiff's request for default is denied as moot.
Mr. Sicuranza's motion for a stay of discovery (ct. doc.
79), is denied because he has not demonstrated good cause.
pendency of a dispositive motion is not, in itself, an automatic
ground for a stay.
Brooks v. Macy's, Inc., 2010 WL 5297756, at
*1 (S.D.N.Y. 2010) (noting that a party seeking a stay of
discovery pursuant to Fed. R. Civ. P. 26(c) bears the burden of
showing good cause); Telesca v. Long Island Hous. P'ship, Inc.,
2006 WL 1120636, at *1 (E.D.N.Y. 2006).
yet filed such a dispositive motion.
Mr. Sicuranza has not
Moreover, a stay would not
If he seeks to argue, based on the anticipated
dismissal of the claims of plaintiff against Waldbaum, that the
Court lacks subject matter jurisdiction over the remaining
claims, the litigation will merely proceed in a state forum if
the Court declines to exercise supplemental jurisdiction over the
Insofar as Mr. Sicuranza seeks to move for summary
judgment on the merits of the claims against him, it appears,
based on this Court's familiarity with the case, that such a
motion will involve a fact-intensive inquiry not appropriate on
the record before the Court for disposition on summary judgment.
Discovery apparently came to a halt or slowed down late last
year as plaintiff and Waldbaum engaged in more earnest settlement
discussions and Mr. Sicuranza's prior counsel sought leave to
At a hearing on January 9, 2014, this Court granted
the motion to withdraw and stayed discovery for 30 days.
Notwithstanding the delay of Mr. Sicuranza in seeking additional
discovery, this Court grants his request to extend the discovery
deadline and conduct discovery, but only to following extent.
By order entered on June 5, 2013, each party was required to
give notice by June 12, 2013 of all remaining depositions and
other discovery the party wanted to take.
Mr. Sicuranza's prior
counsel stated in a June 12, 2013 email to plaintiff that only
six specific Waldbaum employees' depositions remained.
counsel now wants to depose James Drain and Vicky Maul, two of
Since Mr. Sicuranza is bound by his prior
counsel's statement and his counsel's statement at the hearing,
he is given leave to depose Mr. Drain and Ms. Maul, who may be
deposed for a total of one day.
Discovery is extended to June 30, 2014 for completion of
Brooklyn, New York
May 14, 2014
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE
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