Cuthbert v. New Soldier's Restaurant Inc. et al
Filing
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MEMORANDUM DECISION AND ORDER denying 34 Motion to Vacate. All of the recognized factors point in favor of denying the motion, two of them overwhelmingly. Defendants have pointed to no other factors that warrant vacating the judgment. Their motion is therefore denied. Ordered by Judge Brian M. Cogan on 9/26/2015. (Cogan, Brian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------GERMAIN CUTHBERT, on behalf of himself
and all others similarly situated,
Plaintiff,
- against NEW SOLDIER'S RESTAURANT INC.;
WITCLIFFE WILLIAMS, an individual;
CANDY WILLIAMS, an individual; and
CRAIG WILLIAMS, an individual,
Defendants.
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MEMORANDUM DECISION
AND ORDER
14 Civ. 5466 (BMC)
COGAN, District Judge.
This Fair Labor Standards Act case is before the Court on defendants’ motion to vacate
the default judgment previously entered against them.
Federal Rule of Civil Procedure 55(c) provides that a “court may set aside an entry of
default for good cause, and it may set aside a final default judgment under Rule 60(b).” The
Second Circuit has held that three factors govern a district court’s decision to set aside a default
judgment under either Rule 55(c) or 60(b): “(1) whether the default was willful; (2) whether
setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is
presented.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993); see also State St. Bank
and Tr. Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 166-67 (2d Cir. 2004) (“When a
district court decides a motion to vacate a default judgment pursuant to the provisions of Rule
60(b), the courts determination must be guided by [the] three principal factors [mentioned
above].”). “[B]ecause defaults are generally disfavored and are reserved for rare occasions,
when doubt exists as to whether a default should be granted or vacated, the doubt should be
resolved in favor of the defaulting party.” Enron Oil Corp., 10 F.3d at 96.
Despite defendants’ assertion to the contrary, it is clear that their default was willful.
None of the defendants has submitted an affidavit explaining why they failed to answer, and
defendants’ attorney’s affidavit states only that defendants failed to answer because they
“thought that the claims were ridiculous.” I have not been told what is “ridiculous” about the
claims. Defendants’ brief in support of their motion asserts that they thought the lawsuit would
just “go away.” I do not know why they thought this, considering that plaintiff’s counsel sent
two pre-suit letters warning of the need to settle or face a lawsuit. Moreover, defendants had
already been sued in an FLSA action in this district involving other employees more than a year
before this one (in a case which is still pending), so they should have known that when they get a
demand letter, let alone two, there is no reason to believe the claim is going away. Every action
defendants took, and, indeed, everything they have asserted on this motion, reflects a deliberate
decision not to answer. The proof of willfulness is overwhelming.
As to prejudice, plaintiffs have asserted that defendants have failed to meet their burden
of showing the absence of prejudice. It is true that defendants have offered no representations
about preservation of records, co-employee testimony, or the existence of sufficient assets to
satisfy a judgment in the future. Plaintiffs point out that a delayed judgment may be harder to
collect than the existing judgment, on which execution, they state, has already begun. That may
be true, but it is true in many, if not most, default judgment scenarios. However, here, it has
additional importance since defendants are already involved in what appears to be a hotly
litigated FLSA action. On balance, given the meagerness of defendants’ showing, I conclude
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that plaintiff is correct that defendants have failed to meet their burden to show the absence of
prejudice.
Defendants’ effort to show a “meritorious” defense is marginal at best. First, defendant
Candy Williams submitted an affidavit by which she says, “I maintain a spiral notebook in which
I keep record of the number of days each employee works.” Yet she has only annexed pages
reflecting five workweeks, most of which are at the end of 2013 and beginning of 2014.
Considering that at least one of the plaintiffs claims to have worked for defendants for five years,
starting in 2009, this is an inadequate showing. Since, if I were to vacate the judgment,
defendants would have to produce all of their records for the period of plaintiffs’ employment,
there is no reason why they could not have been annexed to the motion. These records are of
course wholly within defendants’ control. At the very least, in reply to plaintiffs having pointing
out the incompleteness of these records when plaintiffs opposed the motion, defendants could
have submitted the rest. But they chose not to reply at all.
Thus, all of the recognized factors point in favor of denying the motion, two of them
overwhelmingly. Defendants have pointed to no other factors that warrant vacating the judgment.
Their motion [34] is therefore denied.
SO ORDERED.
Digitally signed by Brian M.
Cogan
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U.S.D.J.
Dated: Brooklyn, New York
September 26, 2015
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