Maldonado-Lopez v. Cajmant LLC et al

Filing 51

ORDER denying 50 Motion for Sanctions. For the reasons set forth herein, Plaintiff's motion is denied. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 12/1/2016. (Naidich, Zachary)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-593(SLT)(RER)

_____________________

EDUARDO MALDONADO LOPEZ,
Plaintiff,
VS

CAJMANT LLC et al.,
Defendants.
___________________
MEMORANDUM & ORDER
December 1, 2016
___________________

RAMON E. REYES, JR., U.S.M.J.:

and corporate defendants on February 6,
2015. (Dkt. No. 1). On June 30, 2015,
Plaintiff filed the SAC adding Volger as a
named defendant. (Dkt. No. 17 (SAC) at ¶
1). Volger was served the SAC on August 8,
2016. (Dkt. No. 23). Shortly thereafter
Volger, proceeding pro se, filed what was
styled a “Letter MOTION to Dismiss…” on
behalf of himself and Cajmant (the
“Letter”). (Dkt. No. 24). In addition to
seeking dismissal, the Letter also contained
responses to each paragraph in the SAC.
(Dkt. No. 24). As such, the Letter contained
elements of both an answer and a dispositive
motion. Because the Letter appeared to have
been intended as a motion to dismiss, it was
treated as such. (Minute Entry Dated
10/29/2015) (“The document filed 24 is
accepted as a motion to dismiss[.]”). Upon
review, I issued a report (the “R&R”)
recommending that Judge Townes deny
Volger’s motion. (Dkt. Entry Dated

Eduardo
Maldonado
Lopez
(“Plaintiff”), on behalf of himself and those
similarly situated, commenced this action
against Robert Volger (“Volger”), Cajmat
LLC (“Cajmant”), and additional individual
and corporate defendants for violations of
the Fair Labor Standards Act (“FLSA”) and
related state law claims. (Dkt. No. 1). On
October 25, 2016, following Volger’s failure
to answer the Second Amended Complaint
(the “SAC”) or respond to discovery
demands, Plaintiff filed a motion for default
judgment. (Dkt. No. 50). For the reasons
stated below Plaintiff’s motion is denied.
BACKGROUND
Plaintiff commenced this action for
violation of the FLSA and related state law
claims against Cajmant and other individual

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5/04/2016). The R&R also noted that
because Cajmant, a corporate entity, had
failed to retain counsel and appeared
through Volger, and because “the time to
respond to the [SAC] ha[d] run, Cajmant
[was] in default.” Id. Judge Townes adopted
the R&R in its entirety. (Dkt. No. 43).
Volger, who was not directly instructed to
submit an answer following denial of his
motion to dismiss, never filed a subsequent
answer to the SAC.

violations but does not extend to the failure
to file a timely answer, which is properly
considered under Rule 55. Compare Fed. R.
Civ. P. 37 with Fed. R. Civ. P. 55.
Additionally, Plaintiff cites to principles and
case law consistent with both rules. (Pl.’s
Br. at 6, 9). Regardless of whether this
motion is construed under Rule 37 or Rule
55, Plaintiff’s motion is denied.

On September 19, 2016 I granted
Plaintiff’s first motion to compel discovery,
ordering Volger to produce documents and
respond to interrogatories within ten days.
(Order Dated 9/19/2016). Volger failed to
comply with this order. (Dkt. No. 50-7
(Memorandum Of Law In Support Of
Plaintiff’s Motion For A Default Judgment
Against Defendant Volger (“Pl.s Br.”)) at 3).
Plaintiff did not seek additional Court
intervention. Instead, Plaintiff sent two
letters to Volger containing a copy of the
order and requesting compliance. (Pl.’s Br.
at 3). The second letter was returned
unopened. (Pl.’s Br. at 3; Dkt. No. 50
(Declaration of Robert Wisniewski (“Decl.”)
Ex. 4-5)). Volger failed to attend the most
recent telephone conference on October 18,
2016. (Telephone Conference on 10/18/2016
– Tape #11:41:51-11:51:15 (208N) at
11:43:00). Plaintiff now moves for default
judgment against Volger, but not Cajmant.
(Dkt. No. 50).

Under Rule 37 a district court may
impose sanctions, including entering a
default judgment, against a party who “fails
to obey an order to provide or permit
discovery[.]” Fed. R. Civ. P. 37(b). Default
judgment and dismissal are “sever
sanctions…appropriate
in
‘extreme
situations[.]’” Guggenheim Capital, LLC v.
Birnbaum, 722 F.3d 444, 451 (2d Cir. 2013)
(quoting Bobal v. Rensselaer Polytechnic
Inst., 916 F.2d 759, 764 (2d Cir. 1990)). In
considering such sanctions, district courts
consider: “(1) the willfulness of the noncomplaint party; (2) the efficacy of lesser
sanctions; (3) the duration of the
noncompliance; and (4) whether the noncomplaint party had been warned” of the
risk of sanctions. Agiwal v. Mid Island
Mortg. Corp., 555 F.3d 298, 302 (2d Cir.
2009). A pro se defendant is entitled to
adequate warning before sanctions are
imposed. See Guggenheim Capital, 722 F.3d
at 452 (“Our Rule 37 precedents hold that a
court abuses its discretion if it dismisses a
case without first warning a pro se party of
the consequences of failing to comply…a
court is similarly obliged to provide
adequate notice of a default judgment as a
sanction against a party proceeding pro
se.”). This is akin to a notice requirement.
See World Wide Polymers, Inc., 694 F.3d
155, 160 (2d Cir. 2012).

I.

DISCUSSION
Plaintiff moves for default judgment
pursuant to Rule 37, based on Volger’s
failure to comply with this Court’s order.
(Pl.’s Br. at 4). However, in his
memorandum in support of the motion
Plaintiff also notes Volger’s failure to file a
timely answer to the SAC. (Pl.’s Br. at 3).
Rule 37 provides sanctions for discovery

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Default Judgment Under Rule 37

Plaintiff argues that Volger’s
decision to return the second letter
requesting compliance, unopened, evinces
willfulness and suggests that lesser sanctions
will be ineffective. (Pl.’s Br. at 7). Plaintiff
further argues that Volger was aware of the
risks of non-compliance. (Pl.’s Br. at 7).
Volger’s failure to comply with this Court’s
order, his refusal to accept correspondence
from Plaintiff, and his failure to attend the
most recent conference might warrant a
default judgment. However, Volger was
never placed on notice of possible sanctions.
No mention of sanctions is contained in
either the original order or Plaintiff’s letters
to Volger. (Order Dated 9/19/2016; Decl. 45). In the absence of such notice, Plaintiff’s
motion cannot be granted. See Guggenheim
Capital, 722 F.3d at 452. Following the
issuance of this Memorandum and Order
Volger will be deemed on notice of potential
sanctions, including default judgment.
Continued failure to produce documents,
respond to interrogatories, or participate in
conferences may result in a report and
recommendation that judgment be entered
against Volger.
II.

against Volger. Even if the Court were to
consider Plaintiff’s motion as a request to
enter default, I conclude that the Letter is
sufficient to meet Volger’s filing obligations
and as such entry of default is not warranted.
A defendant may “plead or otherwise
defend[,]” as contemplated under Rule 55,
by filing a timely motion to dismiss. Dekom
v. New York, No. 12-CV-1318 (JS)(ARL),
2013 WL 3095010, at *5 (E.D.N.Y. June 18,
2013). If the defendant’s motion is denied,
he must file a responsive pleading within
fourteen days. Fed. R. Civ. P. 12(a)(4)(A).
Failure to do so is grounds for entry of
default. Youth Alive v. Hauppauge Sch.
Dist., No. 08-CV-1068 (NGG)(ALC), 2011
WL 4628751, at *3 (E.D.N.Y. Sept. 30,
2011). Volger filed a timely motion to
dismiss but failed to file an answer after his
motion was denied. (Pl.’s Br. at 3).
In its answer a party must “(A) state
in short and plain terms its defenses to each
claim asserted against it; and (B) admit or
deny the allegations asserted against it[.]”
Fed. R. Civ. P. 8(b). It is this Court’s
practice to construe a pro se litigant’s
pleadings liberally. See Mensh v. U.S., No.
08-CV-4162 (DLI)(ALC), 2009 WL
2242295, at *1 (E.D.N.Y. July 27, 2009)
(“Because petitioner is a pro se litigant, the
court holds his pleadings to ‘less stringent
standards than formal pleadings drafted by
lawyers.’”) (quoting Haines v. Kerner, 404
U.S. 516, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972)).

Default Judgment Under Rule 55

Rule 55 creates “a two-step process
for obtaining a default judgment.” Priestly v.
Headminder, Inc., 647 F.3d 497, 504 (2d
Cir. 2011). Where the defendant “fail[s] to
plead or otherwise defend[,]” the plaintiff
may request entry of default by the Clerk of
the Court. Fed. R. Civ. P. 55(a); see also
Priestly, 647 F.3d at 504. Once default has
been entered, the plaintiff “must apply to the
court for a default judgment.” Fed. R. Civ.
P. 55(b)(2).

The Letter provided responses to
every paragraph of the SAC. (Dkt. No. 24).

Plaintiff has not requested1 and the
Clerk of the Court has not entered a default

entered only upon plaintiff’s request but rather
implies that however a district court ultimately
becomes aware of a party’s default, the clerk must
enter default.”. See Peterson v. Syracuse Police
Dept., 467 Fed.Appx. 31, 33 (2d Cir. 2012)
(summary order).

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This alone is not dispositive as “[t]he plain language
of Rule 55(a)…does not mandate that a default be

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only by two days, and such a minor
technical violation would not warrant a
default judgment under Fed. R. Civ. P.
55.”). For these reasons, entering a default
against Volger, let alone granting default
judgment, is unwarranted.

These responses contained denials and
raised prospective defenses. While its form
was inconsistent with a traditional answer, it
is unclear what additional information
would have been gleaned by requiring
Volger to make a second submission
following denial of his motion.

CONCLUSION
The Second Circuit cautions that
“trial judges must make some effort to
protect a [pro se] party…from waiving a
right to be heard because of his or her lack
of legal knowledge.” Enron Oil Corp v.
Diakuhura, 10 F.3d 90, 96 (2d Cir. 1993).
Default is a harsh remedy, and “when doubt
exists as to whether a default should be
granted or vacated, the doubt should be
resolved in favor of the defaulting party.” Id.
This standard is heightened when the
defaulting party is unrepresented. See id.
(“[C]oncerns regarding the protection of a
litigant’s rights are heightened when the
party held in default appears pro se. A party
appearing without counsel is afforded extra
leeway in meeting the procedural rules
governing litigation.”)

For the reasons set forth above
Plaintiff’s motion is denied and Volger is
deemed on notice of the consequences of
continued non-compliance with discovery
orders. Plaintiff is hereby directed to serve
copies of this Memorandum & Order upon
Volger and Cajmant by regular and certified
mail, and file proof of service with the Clerk
of the Court by December 5, 2016.
SO ORDERED.

Ramon E. Reyes, Jr.
RAMON E. REYES, JR.
United States Magistrate Judge

Dated: December 1, 2016
Brooklyn, NY

While technically non-compliant, I
conclude that the Letter could have been
interpreted as an answer. The letter contains
the denials and prospective defenses, as
required under Rule 8. Fed. R. Civ. P. 8(b).
Volger was never expressly directed to file
an answer following denial of his motion to
dismiss. I cannot conclude that entry of
default is warranted for a failure to comply
with the technical requirements of the
Federal Rules when the substantive purpose
of the rules has been satisfied. See Sony
Corp v. Elm State Elcs., Inc., 800 F.2d 317,
319 (2d Cir. 1986) (“[D]istrict courts
regularly exercise their discretion to deny
technically valid motions for default.”); see
also Mensh, 2009 WL 2242295 at *1 (“Even
assuming that service had been proper,
respondent’s motion would have been late

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