Ferreiro v. First Choice Mechanical Inc.

Filing 20

MEMORANDUM & ORDER: Plaintiff's 18 Motion for Reconsideration is DENIED and his request for a pre-motion conference is DENIED as MOOT. So Ordered by Judge Nicholas G. Garaufis on 1/17/2013. (Lee, Tiffeny)

FiLED

IN CLERK'S OFFICE
US DISTRICT COURT E.D.NY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------){
BRUCE FERREIRO,

* JAN 1 ~ 2013 *

BROOKLYN OFFICE

MEMORANDUM & ORDER
Plaintiff,

12-CV-3597 (NGG) (VVP)

-againstFIRST CHOICE MECHANICAL INC.,
Defendant.

---------------------------------------------------------------------){
NICHOLAS G. GARAUFIS, United States District Judge.

Before the court is (I) Plaintiff's motion for reconsideration of the court's Order vacating
the clerk's entry of default; and (2) his request for a pre-motion conference in advance of an
anticipated motion for default judgment. For the reasons set forth below, Plaintiff's motion for
reconsideration is DENIED and his request for a pre-motion conference is DENIED as MOOT.
I.

BACKGROUND

The court does not recite the entire history of this case, and sets forth only those facts that
are relevant to the instant motion.
On January 16,2013, the court vacated the entry of default against Defendant sua sponte.
(See Jan. 16, 2013, Mem. & Order (Dkt. 17).) In doing so, the court noted that Defendant's
default was not willful, that it had a potentially meritorious defense, and that vacatur would
cause Plaintiff little to no prejudice. (See id. at 4-5.) It also ordered Defendant to file an answer
by January 25, 2013. (See id. at 5-6.) After the court signed its Memorandum and Order, but
before it was filed on ECF, Plaintiff filed a request for a pre-motion conference in advance of a
motion for default judgment. (See Jan. 16, 2013, Pl. Ltr. (Dkt. 16).) Plaintiff now moves for
reconsideration of the vacatur of default primarily on the basis that Defendant misrepresented

certain information to the court. (See Jan. 16,2013, Pl. Ltr. (Dkt. 18) ("Reconsideration
Mem.").) Plaintiff also seems to move for sanctions for Defendant's alleged misrepresentations.
(See id. at 5 ("[D]efendant should even be subject to additional sanctions because of material
false statements .... "(emphasis added).) Defendant has filed a reply, which contests nearly all
of Plaintiff's factual contentions, and also seeks sanctions because Plaintiff attached a
confidential settlement offer to its motion for reconsideration. (See Jan. 16, 2013, Def. Reply
(Dkt. 19).)
II.

STANDARD OF REVIEW

The standard for a motion for reconsideration is "strict." Schrader v. CSX Transp. Inc.,
70 F.3d 255,257 (2d Cir. 1995). Such motions may be granted: (I) if the court overlooks
critical facts; (2) if it overlooks controlling decisions that could have changed its decision, see
id.; (3) in light of an intervening change in controlling law; (4) in light of new evidence; (5) to
correct clear error; or (6) to prevent manifest injustice, see Virgin At!. Airways v. Nat'!
Mediation Bd., 965 F.2d 1245, 1255 (2d. Cir. 1992); see also Rollins v. N.Y. State Div. of
Parole, No. 03-CV-5952 (NGG) (RLM), 2007 WL 539158, at •2 (E.D.N.Y. Feb. 16, 2007) ("A
motion for reconsideration may be granted only if a court overlooked (I) factual matters that
were put before it on the underlying motion or (2) controlling legal authority."). "A motion for
reconsideration is 'not intended as a vehicle for a party dissatisfied with the Court's ruling to
advance new theories that the movant failed to advance in connection with the underlying motion
... [n]or ... a chance for a party to take a 'second bite at the apple."' WestLB AG v. BAC Fla.
Bank, No. 11-CV-5398 (LTS) (AJP), 2012 WL 4747146, at •1 (S.D.N.Y. Oct. 4, 2012) (citations
omitted). However, "[i]t is within the sound discretion of the district court whether or not to

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grant a motion for reconsideration." Markel Am. Ins. Co. v. Linhart, No.ll-CV-5094 (SJF)
(GRB), 2012 WL 5879107, at *2 (E.D.N.Y. Nov. 16, 2012).
III.

DISCUSSION
Before the court are two starkly different sets of facts describing what took place prior to

the entry of default against Defendant. Counsel for Defendant stated that he was expecting a
response to his settlement offer when he was blindsided by Plaintiffs request for a certificate of
default. (See Jan. 14,2013, Def. Ltr. (Dkt. 15); see also Jan. 16,2013, Def. Reply.) Counsel for
Plaintiff claims that because Defendant's counsel had repeatedly failed to file an answer or make
any settlement offer, which impeded discovery, he had warned of his intent to seek an entry of
default. (See Reconsideration Mem. at 5-7.)
Plaintiff contends that the court should grant reconsideration because Defendant's false
statements "were the primary basis for the Court's order vacating the default." (Id. at 7.) He
adds that
[w]hile the Court may be faulted for reaching an important ruling and making
strong statements about plaintiff and his counsel without first hearing from
plaintiff's counsel, if [Defendant's] material statements were true, one cannot
fault the Court for excusing the default. However, almost all of [Defendant's]
material statements ... [were] false.
(!d. at 6-7.) He is mistaken.
These arguments depend on a misreading of the court's Order. The court vacated the
entry of default sua sponte (see Jan. 16, 2013, Mem. & Order at 3-4), which, by definition, does
not contemplate a response from Plaintiff. Also, the "facts" that Plaintiff believes formed the
basis for the order (see Reconsideration Mem. at 2), were never cited as definitive facts. Rather,
the court explicitly described the events detailed in Defendant's letter as "[b]ackground" and as
what counsel for Defendant "assert[ed]," "state[d]," and "maintain[ed]." (.!QJ And most

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importantly, during the course of its analysis, the court explicitly recognized the possibility that
the facts may not be as counsel for Defendant represented, and made clear that its decision did
not depend on counsel for Defendant's representations being true. (See id. at 5 ("[E]ven if
Defendant's counsel has misrepresented its settlement discussions with counsel for Plaintiff, and
has done absolutely nothing since the November 14, 2012, settlement conference, Plaintiffs
attempt at recovery has been delayed by at most two months.").) The court is quite aware that
there are often three sides to any story-the plaintiffs version, the defendant's version, and the
truth.
Moreover, Plaintiffs substantive arguments in favor of reconsideration are flawed. For
instance, in claiming that as part of the good cause analysis Defendant cannot meet the
"meritorious defense" factor, Plaintiff simply disputes Defendant's version of the facts. (See
Reconsideration Mem. at 5 ("Also, on the merits, defendant is asserting the professional
exemption which as its name suggests, applies t~ professionals such as licensed engineers and
not ordinary workers like plaintiff who do not have any professional training and
qualifications-as such, defendant's defense is seriously Jacking in merit.").) But the Second
Circuit has ruled clearly that the "meritorious defense" factor asks only whether the defendant
can present facts that, "ifproven a/trial, would constitute a complete defense." New York v.
Green, 420 F.3d 99, I 09 (2d Cir. 2005) (emphasis added). Similarly, Plaintiff complains of the
"tremendous prejudice" caused by Defendant's default. (See Reconsideration Mem. at 4-5.) But
the analysis under Federal Rule of Civil Procedure 55( c) does not focus on whether the default
has caused prejudice; the analysis is forward-looking, focusing on "the level of prejudice that the
non-defaulting party may suffer should relief be granted." Pecarsky v. Galaxiworld.com Ltd.,
249 F.3d 167, 170 (2d Cir. 2001) (emphasis added). Any prejudice that may result from vacatur

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is ameliorated by the court's Order that Defendant answer the Amended Complaint by January
25,2013. 1 And as to willfulness, given the intense factual dispute-into which the court will not
wade--the court cannot conclude at this point that Defendant's counsel, even if negligent and
indeed careless, has acted willfully or egregiously. See Green, 420 F.3d at I 04 ("[I]n ruling on a
motion to vacate a default judgment, all doubts must be resolved in favor of the party seeking
relief from the judgment in order to ensure that to the extent possible, disputes are resolved on
their merits."). For all of these reasons, Plaintiffs motion is denied, and his request for a premotion conference is denied as moot. 2
Unfortunately, this case illustrates the unhealthy acrimony and incompetence that can
plague our profession and frustrate the efficient administration of justice. Counsel for Plaintiff
used as a discovery tool a procedural mechanism designed for cases where one party is
completely absent, knowing full well that this was not the case here. (See Reconsideration Mem.
at 7 (emphasizing the fact that Defendant first made a settlement offer only after the entry of
default).) Counsel for Defendant, at best, disobeyed numerous court orders and prolonged
discovery. Counsel for both parties are strongly discouraged from engaging in such questionable
tactics in the future.
IV.

CONCLUSION

Plaintiff's motion for reconsideration is DENIED and his request for a pre-motion

That being said, the court may very well construe Defendant's failure to file an answer by January 25,
2013, as a sign of willful disregard for the court's authority.
The court also denies both parties' applications for sanctions. Rather than prolong this dispute, in the
interest of justice, the parties shall proceed with discovery toward a resolution on the merits.

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conference is DENIED as MOOT.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
January 11 , 2013

NICHOLAS G. GARAUFIS\J
United States District Judge

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