Jordan v. City of New York et al
OPINION: The court finds that the City's default was not willful and that the City has presented a meritorious defense. The court also finds that it cannot determine whether plaintiff will be prejudiced by setting aside the default. Because two of the three factors cited by the Second Circuit favor vacating the default and because of the Second Circuit's preference against defaults, the courts finds that there is good cause to set aside the default. The court denies plaintiff's motion for default judgment and vacates the Clerk's entry of default. This opinion resolves the motion numbered 10 on the docket. (As further set forth in this Opinion) (Signed by Judge Thomas P. Griesa on 4/7/2016) (kl)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CITY OF NEW YORK, et al.,
Plaintiff Charles Jordan brings this action pursuant to 42 U.S.C.
§ 1983, alleging that defendants falsely arrested him for possession of his
wife's prescription medication. Plaintiff has moved for default judgment.
For the reasons stated below, the court denies plaintiff's motion for
default judgment and vacates the Clerk of Court's entry of default.
Plaintiff commenced this action on August 12, 2015, alleging that
his arrest on December 5, 2012, violated his civil rights. Defendant City
of New York did not file a timely answer to the complaint. On December
11, 2015, the Clerk of Court entered a Certificate of Default as to the
City. Also on December 11, 2015, plaintiff moved for default judgment
against the City.
The City's opposition to plaintiff's motion for default
judgment was due on December 18, 2015. The City did not file a timely
opposition to plaintiff’s motion for default judgment. On December 29,
2015, the City wrote to the court to request additional time, until
January 12, 2016, for the City to respond to plaintiff’s motion for default
judgment. The court approved that request. On January 12, 2016, the
City filed its opposition to plaintiff’s motion for default judgment as well
as an answer to the complaint. On January 20, 2016, plaintiff filed its
The court now must decide whether to grant plaintiff’s
motion for default judgment.
Following the entry of default by the court clerk under Rule 55(a),
a court may order a default judgment pursuant to Federal Rule of Civil
The decision to grant a motion for a default
judgment lies in the sound discretion of the district court. Shah v. N.Y.
St. Dep’t of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999). The court may
also “set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c).
The Second Circuit has advised district courts to consider three
criteria in deciding whether a default judgment should be granted or an
entry of default vacated: (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 presented a meritorious
defense. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993).
“In this circuit, there is a strong ‘preference for resolving disputes
on the merits.’”
Murray Eng’g, P.C. v. Windermere Properties LLC, No.
12-cv-52 (JPO), 2013 WL 1809637, at *3 (S.D.N.Y. Apr. 30, 2013)
(quoting Enron Oil Corp., 10 F.3d at 95). Moreover, “because 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.
The first factor used to determine whether to grant a default
judgment or vacate an entry of default is whether the default was willful.
The Second Circuit has interpreted “willfulness,” in the context of a
default, to refer to conduct that is more than merely negligent or
careless. S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998). The “court
may find a default to have been willful where the conduct of counsel or
the litigant was egregious and was not satisfactorily explained.”
Here, the City’s failure to respond to the complaint has been
The City has stated that its failure to answer
arose as a result of a personal circumstance of its attorney who was
previously handling the case.
When that attorney took a leave of
absence, and the case was assigned to a new attorney, the new attorney
alerted the court to the situation. The court finds that the City was not
willful in failing to answer the complaint.
Therefore, this first factor
favors vacating the entry of default.
The second factor used to determine whether to grant a default
judgment or vacate an entry of default is whether setting aside the
default would prejudice the party for whom default was awarded. In his
reply brief, plaintiff argues that he may be prejudiced because the statute
of limitations has now run on his claims and he will thus be unable to
replace John Doe defendants with named defendants.
Plaintiff is correct that the statute of limitations has now run on
Because § 1983 does not provide a specific statute of
limitations, the court applies the statute of limitations for personal injury
actions under state law. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir.
2013). Section 1983 actions filed in New York are subject to a three-year
statute of limitations. Id.; N.Y. C.P.L.R. § 214. Here, plaintiff claims that
his arrest on December 5, 2012, violated his rights. Accordingly, plaintiff
had until December 5, 2015, to file his suit.
While plaintiff filed his
complaint on August 12, 2015, before the statute of limitations had run,
he was unable to list the individual officer defendants by name, instead
listing the individual defendant as John/Jane Doe # 1-12. “Generally,
John Doe pleadings cannot be used to circumvent statutes of limitations
because replacing a John Doe with a named party in effect constitutes a
change in the party sued.” Hogan, 738 F.3d at 517 (internal quotations
marks and citation omitted). Therefore, plaintiff may replace the John
Doe defendants with named defendants only if the amended pleading
relates back to the date of the original complaint under Federal Rule of
Civil Procedure 15(c). See id. So in order to determine whether plaintiff
will be prejudiced by vacatur of his default, the court must look to
whether an amended complaint naming the individual defendants would
relate back to the date of the original complaint.
Rule 15(c)(1)(C) provides the federal standard for relation back.
Hogan, 738 F.3d at 517. For an amended complaint adding a new party
to relate back under Rule 15(c)(1)(C):
(1) the claim must have arisen out of conduct set
out in the original pleading; (2) the party to be
brought in must have received such notice that
it will not be prejudiced in maintaining its
defense; (3) that party should have known that,
but for a mistake of identity, the original action
would have been brought against it; and . . . (4)
the second and third criteria are fulfilled within
120 days of the filing of the original complaint,
and . . . the original complaint [was] filed within
the limitations period.
Hogan, 738 F.3d at 517 (quoting Barrow v. Wethersfield Police Dept., 66
F.3d 466, 468–69 (2d Cir. 1995)). “[L]ack of knowledge of a John Doe
defendant’s name does not constitute a ‘mistake of identity.’”
738 F.3d at 518 (quoting Barrow, 66 F.3d at 470). Accordingly, plaintiff
here would be unable to replace the John Doe defendants with named
defendants under the federal standard for relation back.
However, even where a plaintiff’s claims do not relate back under
the federal standard of Rule 15(c)(1)(C), Rule 15(c)(1)(A) permits an
amended pleading to relate back when “the law that provides the
applicable statute of limitations allows relation back.” Because § 1983
derives its statute of limitations from state law, the court looks to New
York state law’s relation back doctrine. New York state law “provides a
more forgiving principle of relation back in the John Doe context,
compared to the federal relation back doctrine under Rule 15(c)(1)(C).”
Hogan, 738 F.3d at 518. Here, the applicable state law is § 1024 of the
New York Practice Law and Rules (“CPLR”), which states:
A party who is ignorant, in whole or in part, of
the name or identity of a person who may
properly be made a party, may proceed against
such person as an unknown party by
designating so much of his name and identity as
is known. If the name or remainder of the name
becomes known all subsequent proceedings
shall be taken under the true name and all prior
Under CPLR § 1024, a plaintiff may substitute a named party for a John
Doe party nunc pro tunc if the plaintiff meets two requirements: a plaintiff
must (1) exercise due diligence, prior to the running of the statute of
limitations, to identify the defendant by name, and (2) describe the John
Doe party in such form as will fairly apprise the party that he is the
intended defendant. Hogan, 738 F.3d at 518–19.
Due diligence “requires that a plaintiff show that he or she made
timely efforts to identify the correct party before the statute of limitations
Ceara v. Deacon, 68 F. Supp. 3d 402, 409 (S.D.N.Y. 2014)
(internal quotation marks and citation omitted). Because plaintiff does
not address this issue in his briefing, the court is unable to determine
whether he exercised due diligence to identify the defendants by name.
Likewise, until plaintiff actually attempts to replace the John Doe
defendants with named defendants, the court cannot determine whether
plaintiff meets the second § 1024 requirement of having described the
John Doe party in such form as to fairly apprise the named party that he
or she was the intended defendant. However, the court does note that
the complaint lists the date and location of the arrest that forms the
basis of the action, so it seems likely that an officer involved in plaintiff’s
arrest would know that he or she was an intended defendant.
In sum, the court cannot determine whether an amended
complaint would relate back such that plaintiff would be able to replace
the John Doe defendants with named defendants. Therefore, the court
cannot determine whether plaintiff would be prejudiced by the vacatur of
The second factor, then, favors neither granting default
judgment nor vacating the entry of default.
The third factor used to determine whether to grant a default
judgment or vacate an entry of default is whether the moving party has
presented a meritorious defense. “A defendant seeking to vacate an entry
of default must present some evidence beyond conclusory denials to
support his defense.
The test of such a defense is measured not by
whether there is a likelihood that it will carry the day, but whether the
evidence submitted, if proven at trial, would constitute a complete
defense.” Enron Oil Corp., 10 F.3d at 98. Having reviewed the briefs and
accompanying materials submitted by the City, the court is convinced
that the City has meritorious defenses.
For example, the City argues
that plaintiff’s arrest was supported by probable cause, and thus,
plaintiff suffered no denial of a constitutional right.
If proven, this
constitutes a complete defense. See Boyd v. City of N.Y., 336 F.3d 72, 75
(2d Cir. 2003). Therefore, the third factor favors vacating the entry of
The court finds that the City’s default was not willful and that the
City has presented a meritorious defense. The court also finds that it
cannot determine whether plaintiff will be prejudiced by setting aside the
Because two of the three factors cited by the Second Circuit
favor vacating the default and because of the Second Circuit’s preference
against defaults, the courts finds that there is good cause to set aside the
The court denies plaintiff’s motion for default judgment and
vacates the Clerk’s entry of default. This opinion resolves the motion
numbered 10 on the docket.
Dated: New York, New York
April 7, 2016
Thomas P. Griesa
U.S. District Judge
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