Mil-Spec Industries, Corp. v. Precision Ammunition, LLC et al
MEMORANDUM & ORDER denying 37 Motion to Strike; For the foregoing reasons, Judge Locke's August 30, 2016 Electronic Order granting the Individual Defendants an extension of time to answer is AFFIRMED, and Plaintiff's motion to strike (D ocket Entry 37) is DENIED. Further, the Clerk's Entry of Default (Docket Entry 12) is VACATED. The parties are directed to file a joint proposed discovery schedule within fourteen (14) days of the date of this Memorandum and Order. So Ordered by Judge Joanna Seybert on 8/16/2017. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MIL-SPEC INDUSTRIES CORP.,
MEMORANDUM & ORDER
PRECISION AMMUNITION, LLC, MATT
CAMPBELL, GARY PHILLIPS,
and JOHN DOES 1-10,
Darius A. Marzec, Esq.
Marzec Law Firm
776A Manhattan Avenue, Suite 104
New York, NY 11222
Eric Walraven, Esq.
Law Office of Eric Walraven
5956 Sherry Lane, Suite 1000
Dallas, TX 75225
SEYBERT, District Judge:
commenced this action against Matt Campbell (“Campbell”), Gary
Phillips (“Phillips,” and together with Campbell, the “Individual
Defendants”), and Precision Ammunition, LLC (“Precision,” and
pending before the Court is Plaintiff’s appeal of Magistrate Judge
Steven I. Locke’s August 30, 2016 Electronic Order, and a motion
to strike the Answer filed by the Individual Defendants.
Plaintiffs also bring claims against several “John Doe”
reasons that follow, Judge Locke’s Electronic Order is AFFIRMED,
and Plaintiff’s motion (Docket Entry 37) is DENIED.
The Court assumes familiarity with its August 5, 2016
necessary to resolve the pending motion.
See Mil-Spec Industries
Corp. v. Precision Ammunition, LLC, No. 14-CV-7099, 2016 WL 4179945
(E.D.N.Y. Aug. 5, 2016).
Initially, Defendants in this matter failed to appear,
and on February 4, 2015, the Clerk of the Court noted their default
pursuant to Federal Rule of Civil Procedure 55(a).
Default, Docket Entry 12.)
After months of no activity on the
December 15, 2015.
(Notice, Docket Entry 13.)
Plaintiff advised that it was preparing a motion for a default
(Status Report, Docket Entry 14.)
On January 15, 2016,
before the default motion was filed, Defendants appeared and filed
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(5),
arguing that Plaintiff failed to properly serve them with the
(Mot. to Dismiss, Docket Entry 16.)
its default motion on February 2, 2016.
(Default Mot., Docket
On August 5, 2016, the Court held that the Individual
Defendants were properly served, but that the corporate Defendant,
Nonetheless, the Court granted Plaintiff an additional sixty days
to serve Precision.
Id. at *4.
The Court also denied Plaintiff’s
motion for a default judgment without prejudice.
Id. at *1.
On August 26, 2016, the Individual Defendants requested
an extension of time to answer the Complaint. (Mot. for Extension,
Docket Entry 32.)
They recognized that they were required to
answer the Complaint in January 2015, but requested that the Court
allow the Individual Defendants to file an Answer along with
(Mot. for Extension.)
That same day, Plaintiff filed
Defendants’ motion was “procedurally improper” and that “the court
ha[d] already ruled on the issue . . . [when it] den[ied] relief
as to the individual defendants.”
(Pl.’s Opp., Docket Entry 33,
Further, Plaintiff appeared to argue that the request was
improper because the Entry of Default had not been vacated. (Pl.’s
baseless letter motion.”
(Pl.’s Opp. at 2.)
August 30, 2016; Answer, Docket Entry 35.)
On August 30, 2016,
Defendants and Precision later that day.
On September 13, 2016, Plaintiff filed an appeal of Judge
Locke’s Electronic Order and requested that the Court strike the
Answer filed by the Individual Defendants.
(Pl.’s Mot., Docket
On September 27, 2016, the Individual Defendants
opposed Plaintiff’s motion.
(Defs.’ Opp., Docket Entry 38.)
Plaintiff filed a reply in further support of its motion on October
(Pl.’s Reply, Docket Entry 39.)
Magistrate judges generally “‘have broad discretion in
resolving nondispositive matters.’” Carter v. Logan Bus Co., Inc.,
No. 15-CV-5217, 2016 WL 5231800, at *1 (E.D.N.Y. Sept. 21, 2016)
(quoting Gorman v. Polar Electro Inc., 137 F. Supp. 2d 223, 226
However, “when a magistrate judge rules on a
non-dispositive matter, ‘[t]he district judge in the case must
consider timely objections and modify or set aside any part of the
order that is clearly erroneous or contrary to law.’”
v. Americare Certified Special Servs., Inc., No. 12-CV-1466, 2013
WL 4495672, at *1 (E.D.N.Y. Aug. 20, 2013) (quoting FED. R. CIV. P.
72(a)) (alteration in original).
A magistrate decision is clearly
erroneous when, after reviewing the entire record, the district
court “‘is left with the definite and firm conviction that a
mistake has been committed.’”
Feliciano v. Cty. of Suffolk, No.
04-CV-5321, 2009 WL 290469, at *1 (E.D.N.Y. Feb. 4, 2009) (quoting
E.E.O.C. v. First Wireless, Inc., 225 F.R.D. 404, 405 (E.D.N.Y.
Under this standard of review, “a magistrate judge’s
controlling authority,” and the findings of the magistrate judge
“should not be rejected merely because the court would have decided
the matter differently.”
Bachayeva, 2013 WL 4495672, at *1.
Under Federal Rule of Civil Procedure 12(f), “the court
redundant, immaterial, impertinent or scandalous matter.”
CIV. P. 12(f).
Although the “[r]esolution of a Rule 12(f) motion
is left to the district court’s discretion[,] . . . . [m]otions to
strike are generally disfavored.” Azikiwe v. Nigeria Airways Ltd.,
No. 03-CV-6387, 2006 WL 2224450, at *1 (E.D.N.Y. July 31, 2006)
(quoting EEOC v. Bay Ridge Toyota, Inc., 327 F. Supp. 2d 167, 170
(E.D.N.Y. 2004); Connell v. City of N.Y., 230 F. Supp. 2d 432, 438
The Parties’ Arguments
Plaintiff argues that Judge Locke abused his discretion
by extending the Individual Defendants’ time to answer because
they were properly served in 2014 and in default at the time of
(Pl.’s Br., Docket Entry 37-7, at 2.)
further argues that the Individual Defendants’ request failed to
address the standard for vacating an entry of default.
The Individual Defendants argue that the extension was
properly granted because Plaintiff’s motion for a default judgment
was denied without prejudice, and “[t]o deny Plaintiff’s motion
for [a] default judgment but not allow Plaintiffs Campbell and
Phillips to file answers would serve no purpose.”
(Defs.’ Opp. at
On reply, Plaintiff urges the Court to vacate Judge Locke’s
Electronic Order because the Individual Defendants concede that
the Entry of Default was never vacated.
(Pl.’s Reply at 2.)
Plaintiff also argues that because this Court did not extend the
Individual Defendants’ time to answer or vacate the Entry of
Default in its August 5, 2016 Order, the Individual Defendants’
request for an extension sought relief that had already been
(Pl.’s Reply at 2.)
The Court finds that Judge Locke’s Electronic Order is
not “clearly erroneous or contrary to law.”
WL 4495672, at *1.
See Bachayeva, 2013
Pursuant to Federal Rule of Civil Procedure
6(b), “a court may, for good cause extend the time to file an
answer if the party failed to act because of excusable neglect.”
Jenn-Ching Luo v. Baldwin Union Free Sch. Dist., No. 12-CV-3073,
The Court disagrees with Plaintiff’s interpretation of its
August 5, 2016 Order. That Order addressed whether service on
the Individual Defendants was proper; it did not determine
whether the Individual Defendants should be permitted to answer
or whether the Entry of Default should be vacated. To the
extent Plaintiff argues that permitting the Individual
Defendants to answer is inconsistent with that Order, that
argument is meritless.
2014 WL 3943099, at *4 (E.D.N.Y. Aug. 12, 2014), aff’d, 677 F.
App’x 719 (2d Cir. 2017) (internal quotation marks omitted); see
also FED. R. CIV. P. 6(b)(1)(B). Generally, “‘[g]ood cause is . . .
not difficult to show, and an application for the enlargement of
time under Rule 6(b)(1) normally will be granted in the absence of
bad faith on the part of the party seeking relief or prejudice to
the adverse party.’”
Luo, 2014 WL 3943099, at *4 (quoting Rankin
v. City of Niagara Falls, 293 F.R.D. 375, 390 (W.D.N.Y. 2013)).
Plaintiff at this preliminary stage of the proceedings.
To determine whether the moving party has established
excusable neglect, the Second Circuit has directed district courts
to consider “‘ [t]he danger of prejudice to the [opposing
party],  the length of the delay and its potential impact on
judicial proceedings,  the reason for the delay, including
whether it was in the reasonable control of the movant, and 
whether the movant acted in good faith.’”
Tancredi v. Metro. Life
Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395,
113 S. Ct. 1489, 123 L. Ed. 2d. 74 (1993)) (alterations in
The Second Circuit has further characterized excusable
neglect as “an elastic concept . . . that is at bottom an equitable
one, taking account of all relevant circumstances surrounding the
Tancredi, 378 F.3d at 228 (internal quotation
marks and citations omitted). As discussed, there is little danger
Additionally, the effect of any delay will be
minimal considering that discovery has yet to begin.
for the delay is not entirely clear, but the Individual Defendants
have previously maintained that they were never served with the
See Mil-Spec, 2016 WL 4179945, at *3.
Defendants acted in bad faith.
Therefore, the relevant factors
weigh in favor of granting the Individual Defendants an extension
of time to answer, and as a result, the Court will not strike the
Answer of the Individual Defendants.
See Luo v. Baldwin Union
Free Sch. Dist., 677 F. App’x 719, 720 (2d Cir. 2017) (explaining
that, although “courts are entitled to enforce compliance with the
time limits of the Rules by various means,” when granting a motion
to strike would amount to a default judgment, “the extreme sanction
of a default judgment must remain a weapon of last . . . resort”)
In fact, Plaintiff fails to articulate any reason it would be
prejudiced by the filing of a late answer by the Individual
The undersigned previously determined that the Individual
Defendants’ allegation that they never received the Complaint
was insufficient to rebut the process server’s affidavit of
service. Mil-Spec, 2016 WL 4179945, at *3. However, the Court
nevertheless considers this allegation in accordance with the
Second Circuit’s mandate to “tak[e] [into] account . . . all
relevant circumstances surrounding the party’s omission.”
Tancredi, 378 F.2d at 228.
(quoting Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981)).
Accordingly, Judge Locke’s Electronic Order granting the extension
is AFFIRMED, and the motion to strike is DENIED.
The Entry of Default
The Court notes that the Clerk’s Entry of Default
against both the Individual Defendants and Precision remains in
(See Entry of Default.)
However, the Court “may set aside
an entry of default sua sponte for good cause.”
Negrin v. Kalina,
No. 09-CV-6234, 2012 WL 4074992, at *2 (S.D.N.Y. Sept. 11, 2012);
see also FED. R. CIV. P. 55(c).
“Relief from default under Rule
55(c) is to be granted at the discretion of the court upon
consideration of the individual circumstances of the case and the
credibility and good faith of the parties.”
197 F.R.D. 231, 238 (E.D.N.Y. 2000).
Weisel v. Pischel,
Moreover, “the standard for
setting aside the entry of a default pursuant to Rule 55(c) is
less rigorous than the . . . standard for setting aside a default
judgment . . . pursuant to Rule 60(b).”
Grosso v. Radice, No. 07-
CV-3620, 2007 WL 4441022, at *1 (E.D.N.Y. Dec. 10, 2007) (internal
quotation marks and citation omitted).
To evaluate good cause,
the Court considers “‘(1) whether the default was willful; (2)
whether setting aside the default would prejudice the party for
whom default was awarded; and (3) whether the moving party has
Windermere Props. LLC, No. 12-CV-0052, 2013 WL 1809637, at *3
(S.D.N.Y. Apr. 30, 2013) (quoting Peterson v. Syracuse Police
Dep’t, 467 F. App’x 31, 33 (2d Cir. 2012)); Grosso, 2007 WL
4441022, at *1. While considering these factors, if “‘doubt exists
as to whether a default should be granted or vacated, the doubt
should be resolved in favor of the defaulting party.’”
Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)).
The Second Circuit has
made clear that it prefers that disputes “‘be resolved on the
merits, not by default.’”
Luo, 2014 WL 3943099, at *4 (quoting
Azikiwe, 2006 WL 2224450, at *1).
See Murray Eng’g, 2013 WL 4441022, at *4 (explaining
that willfulness “refer[s] to conduct that is more than merely
negligent or careless”) (internal quotation marks and citation
Additionally, vacating the Entry of Default will not
prejudice Plaintiff or delay the resolution of the case.
based on the Court’s review of Defendants’ Answer and their
opposition to the motion for a default judgment, (Docket Entry
27), Defendants may have a meritorious defense to the Plaintiff’s
Id. at *6 (“The test of such a defense is not measured by
whether there is a likelihood that it will carry the day, but
constitute a complete defense.”). Thus, the factors weigh in favor
of vacating the Entry of Default, and there is good cause to do
Based on the Court’s evaluation of the relevant factors, and
in light of the Second Circuit’s clear preference that disputes be
resolved on the merits, the Court exercises its discretion and
VACATES the Clerk’s Entry of Default (Docket Entry 12).
For the foregoing reasons, Judge Locke’s August 30, 2016
Electronic Order granting the Individual Defendants an extension
of time to answer is AFFIRMED, and Plaintiff’s motion to strike
(Docket Entry 37) is DENIED. Further, the Clerk’s Entry of Default
(Docket Entry 12) is VACATED.
The parties are directed to file a
joint proposed discovery schedule within fourteen (14) days of the
date of this Memorandum and Order.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
16 , 2017
Central Islip, New York
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