McKeever v. Nassau County et al

Filing 90

ORDER terminating 87 Motion to Dismiss for Failure to State a Claim; granting 89 Motion to Withdraw; For the reasons stated, IT IS HEREBY ORDERED that Plaintiff's Letter Motion (ECF No. 89) is GRANTED insofar as his request to dismiss claims against defendant City of Pittsburgh, Pennsylvania is SO ORDERED and the claims against Pittsburgh are DISMISSED; and IT IS FURTHER ORDERED that the City of Pittsburgh, Pennsylvania's motion to dismiss (ECF No. 87) is TERMINATED as MOOT; and, the Court's referral of Pittsburgh's motion to dismiss to Judge Locke is WITHDRAWN; and IT IS FURTHER ORDERED that, to the extent Plaintiff seeks default judgments against defendants Ross and the City of Mineola, New York, the Letter M otion is DENIED without prejudice; however, the Court REFERS Plaintiff's request for entries of default against these defendants to the Clerk of the Court; and IT IS FURTHER ORDERED that the Clerk of the Court shall (1) terminate the City of Pi ttsburgh, Pennsylvania as a defendant; (2) update the docket to substitute the Incorporated Village of Mineola, New York as the proper defendant in place of defendant the County of Mineola, New York; and (3) mail a copy of this Order to the pro se Pl aintiff; and IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 9/21/2021. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
VICTOR McKEEVER,
Plaintiff,

ORDER
17-CV-4996(JS)(SIL)

-againstMADELINE SINGAS; BRITTANY R. GURRIER;
LAUREN KALAYDIJAN; DOROTHY J. MARTIN;
KRISTIN C. ROSS; STEVEN STADTMILLER;
PATRICK DELANEY; PATRICK CARROLL;
POLICE OFFICER JOHN DOE #1;
POLICE OFFICER JOHN DOE #2;
COUNTY OF NASSAU, NEW YORK;
COUNTY OF MINELOA, NEW YORK;
COUNTY OF ALLEGHENY, PENNSYLVANIA;
and CITY OF PITTSBURGH, PENNSYLVANIA,
Defendants.
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SEYBERT, District Judge:
The Court is in receipt of pro se Plaintiff Victor
McKeever’s (“Plaintiff”) letter motion: (1) for default judgments
against Defendants Kristin C. Ross and the City of Mineola, New
York;1 and (2) to withdraw the civil action against the City of
Pittsburgh, Pennsylvania (“Pittsburgh”) (the “Letter Motion”).
(Ltr. Mot., ECF No. 89.)

In the Amended Complaint, Plaintiff named the County of Mineola,
New York as a defendant. In the Letter Motion, he seeks a default
judgment against the “City of Mineola.” Service to the County of
Mineola was returned executed; the Form indicates service was made
upon “JOYCE [illegible] 2nd FL[,] VILLAGE CLERK”. (ECF No. 27, at
6.) The Court takes judicial notice that the proper entity is the
Incorporated Village of Mineola. Accordingly, the Clerk of the
Court is directed to substitute the Incorporated Village of
Mineola, New York as the proper defendant.
1

The
voluntarily

Court

construes

dismissing

Plaintiff’s

his

claims

second

against

request

as

Pittsburgh.

Accordingly, the Letter Motion is GRANTED insofar as his request
to dismiss defendant Pittsburgh is SO ORDERED and the claims
against Pittsburgh are DISMISSED.

It follows that Pittsburgh’s

motion to dismiss (ECF No. 87) is TERMINATED as MOOT and the order
referring the motion to Judge Locke is WITHDRAWN.
The remaining portion of Plaintiff’s Letter Motion for
default judgments against defendants Ross and the “City of Mineola”
is DENIED without prejudice to renew.

Given his pro se status,

the Court construes this portion of the Letter Motion as requesting
the Clerk of the Court to enter a notation of default against these
defendants.

Rule 55 of the Federal Rules of Civil Procedure sets

forth a two-step process for entry of a default judgment.

Lopez

v. Guzman, No. 17-CV-1668, 2021 WL 4045009, at *2 (E.D.N.Y. Aug.
11, 2021) (citing Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96
(2d Cir. 1993)), report and recommendation adopted by 2021 WL
4033574 (E.D.N.Y. Sept. 3, 2021).

First, “the Clerk of Court

enters the default pursuant to Rule 55(a) by notation of the
party’s default on the Clerk’s record of the case.”

Id.; see also

FED R. CIV. P. 55(a) (providing that “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default”). Second,

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after the Clerk of Court enters a default against a party, if that
party fails to appear or otherwise move to set aside the default
pursuant to Rule 55(c), the court may enter a default judgment.
See FED. R. CIV. P. 55(b).
Therefore, the request for default judgments is DENIED
without prejudice and the Court REFERS the portion of Plaintiff’s
Letter Motion for entry of defaults to the Clerk of the Court.
CONCLUSION
For

the

reasons

stated,

IT

IS

HEREBY

ORDERED

that

Plaintiff’s Letter Motion (ECF No. 89) is GRANTED insofar as his
request to dismiss claims against defendant City of Pittsburgh,
Pennsylvania is SO ORDERED and the claims against Pittsburgh are
DISMISSED; and
IT IS FURTHER ORDERED that the City of Pittsburgh,
Pennsylvania’s motion to dismiss (ECF No. 87) is TERMINATED as
MOOT; and, the Court’s referral of Pittsburgh’s motion to dismiss
to Judge Locke is WITHDRAWN; and
IT IS FURTHER ORDERED that, to the extent Plaintiff seeks
default judgments against defendants Ross and the City of Mineola,
New York, the Letter Motion is DENIED without prejudice; however,
the Court REFERS Plaintiff’s request for entries of default against
these defendants to the Clerk of the Court; and

3

IT IS FURTHER ORDERED that the Clerk of the Court shall
(1) terminate the City of Pittsburgh, Pennsylvania as a defendant;
(2) update the docket to substitute the Incorporated Village of
Mineola, New York as the proper defendant in place of defendant
the County of Mineola, New York, see supra Note 1; and (3) mail a
copy of this Order to the pro se Plaintiff; and
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §
1915(a)(3), the Court certifies that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis
status is DENIED for the purpose of any appeal.

See Coppedge v.

United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

September 21 , 2021
Central Islip, New York

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