Moore v. NYC Health Hospital et al

Filing 106

ORDER ADOPTING REPORT AND RECOMMENDATION for 97 Report and Recommendations. For the foregoing reasons, Plaintiff Daniel Moore's objections (ECF No. 98) to the Report and Recommendation of Magistrate Judge Parker (ECF No. 97) are overr uled, and Judge Parker's Report is adopted. The Court also concludes that there was no error in Judge Parker opinion and order setting aside the certificate of default (ECF No. 96). Accordingly, Plaintiff's motion for default judgment against Defendant Jones (ECF No. 85) is denied. The Clerk of Court is respectfully directed to mail a copy of this order to Plaintiff. (Signed by Judge J. Paul Oetken on 6/26/2023) (ate)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DANIEL MOORE,

Plaintiff,

18-CV-496 (JPO)

-v-

ORDER ADOPTING REPORT AND
RECOMMENDATION

NYC HEALTH + HOSPITAL, et al.,
Defendants.

J. PAUL OETKEN, District Judge:
Plaintiff Daniel Moore (“Moore”), proceeding pro se, brought this action against various
New York City and State public health officials and institutions, the New York City Department
of Correction and individuals in it, and several others related to injuries he allegedly sustained
while in custody of the New York City Department of Correction. One of the individual
Defendants, and the only Defendant still remaining in this case, is Corrections Officer Jayvon
Jones (“Jones”).
The Court assumes familiarity with the facts of this case based on its prior opinions.
Most relevant here, on August 6, 2020, this Court dismissed all parts of the Sixth Amended
Complaint (“SAC”) except Moore’s claim that Jones was deliberately indifferent to his legrelated pain. See Moore v. City of New York, 2020 WL 4547223, at *2-3 (S.D.N.Y. Aug. 6,
2020). On April 28, 2021, this Court referred this matter to Magistrate Judge Parker for general
pretrial supervision. (ECF No. 69.) On September 16, 2021, Moore requested permission to
move for default against Jones, which Judge Parker approved. (ECF No. 82.) On February 2,
2022, the Clerk of Court issued a certificate of default as to Jones. (ECF No. 83.) On September
22, 2022, Moore filed a letter motion requesting a default judgment and damages. (ECF No. 85.)

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On December 20, 2022, Jones made an appearance in this action. (ECF No. 90.) Jones
moved to vacate the certificate of default. (ECF No. 92.) Judge Parker held that Jones
demonstrated good cause for vacatur of the certificate of default and granted Jones’ motion.
(ECF No. 96.)
Judge Parker conducted a thorough and careful review and issued a Report and
Recommendation (the “Report”) that this Court deny Moore’s motion for default judgment
against Jones as moot. (ECF No. 97.) The Court has reviewed the Report.
If a party files an objection to a report and recommendation prepared by a federal
magistrate judge, the “district judge must determine de novo [whether] any part of the magistrate
judge’s disposition . . . has been properly objected to. Fed. R. Civ. P. 72(b)(3); see also United
States v. Raddatz, 417 U.S. 667, 674 (1980) (explaining that while the de novo standard here is
greater than that of clear error, “[i]t should [still] be clear that on these dispositive motions, the
statute calls for a de novo determination,” it does not require “a de novo hearing”). Magistrate
Judge Parker’s well-reasoned Report presents no such errors and is therefore fully adopted by
this Court. It is well established the certificate of default has been vacated, the pending motion
for default judgment is moot as a matter of law. See Kampfer v. Cuomo, 993 F. Supp. 2d 188,
192 (N.D.N.Y. 2014), aff’d, 643 Fed App’x 43, 43 (2d Cir. 2016). Judge Parker considered the
correct three factors used to assess vacatur motions under Federal Rule of Civil Procedure 55:
“(1) the willfulness of default, (2) the existence of any meritorious defenses, (3) prejudice to the
non-defaulting party.” (ECF No. 96 at 4 (quoting New York v. Green, 420 F.3d 99, 104 (2d Cir.
2005).) The Court also agrees with the Report’s application of these factors. Judge Parker’s
Report carefully and persuasively explains that, although there may be evidence of willfulness in
connection with the default, the latter two factors — meritorious defenses and prejudice —

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weighed sufficiently strongly in favor of excusing Jones’ failure to appear that setting aside the
default was justified. First, Jones has plausible merits defenses in an intentional tort suit related
to both his state of mind and whether he is cloaked by qualified immunity. Second, there is no
prejudice to Moore as a result of the vacatur because he has not made a prejudice showing apart
from “delay.” As a matter of law, “vacatur of a default must result in tangible harm beyond mere
delay” to be prejudicial. McInnis USA Inc. v. Aggrecem Mech., LLC, 2022 WL 3028980, at *2
(S.D.N.Y. Aug. 1, 2022). Accordingly, on these facts and bearing in mind the Second Circuit’s
strong preference for resolving disputes on the merits, Judge Parker properly weighed these
factors and concluded that those favoring Jones ultimately established good cause to vacate the
certificate of default. This Court agrees with Judge Parker’s analysis. There was no underlying
error, clear or otherwise, in Judge Parker’s vacatur of the default.
Moore raises a number of specific objections to the Report. (ECF No. 98.) First, Moore
argues that “his fourteen days to file his written objection should accrue” not from the March 8,
2023 date on the Docket, but “from the 3/21/2023 date of recorded receipt of the Court’s
mailing.” (ECF No. 98 at 1.) This relief is granted. Moore’s objections will be deemed timely.
Second, Moore argues that the Report fails to apply the correct pleading standard
“because if pro-se pleadings were ‘liberally construed,’ under the language of Supreme Court
holdings[,] the resulting conclusions [of the Report] would have been different.” (Id.) Here,
however, the Report’s recommendation is based on the determination that, as a matter of law, a
motion for default judgment is mooted when its predicate certificate of default is vacated. Judge
Parker did not fail in any way to construe Moore’s pleadings liberally; there is nothing that a
more charitable construction of the SAC’s facts could do to alter the Report’s conclusion.

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Third, Moore contends that “in the context of a default judgment[,] . . . the willfulness
weighs against vacating the certificate of default.” (ECF No. 98 at 2.) While willfulness is one
factor that can weigh against vacating a default, as Judge Parker explained, it can be outweighed
by the other factors, as in this case.
Fourth, Moore argues that Jones’ merits defenses, which, inter alia, challenge whether
there is sufficient evidence to find he had the requisite knowledge for intentional tort liability, are
inapplicable as defenses to whether or not Jones defaulted. (Id.) Because neither this Court nor
Judge Parker operated under such an assumption, this is not a valid basis for rejecting the
conclusions of the Report.
Fifth, relying on Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), Plaintiff objects that the
Report engaged in insufficient analysis but instead made a mere “conclusory supposition,” which
“would likely . . . not be agreed on by [j]urist[s] of [r]eason.” (Id.) However, Miller-El
concerned the proper standard of appellate review of a court’s order denying a constitutional
habeas petitioner a certificate of appealability. Id. 327—28. As the Supreme Court explained in
Miller-El itself, the Court’s holding in that case stood for the rule that “when a habeas applicant
seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals
should limit its examination to a threshold inquiry into the underlying merit of his claims.” Id. at
327 (internal citation omitted). Moore’s claim against Jones, however, is not a habeas action,
nor is this case an appeal. Miller-El is inapposite. Moreover, Judge Parker’s discussion and
weighing of the factors applicable to setting aside a default and then granting default judgment
were sufficiently explained and were not a mere “conclusory supposition.”

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Sixth, Moore restates his view that “the U.S. Magistrate’s findings were devoid of liberal
constru[ction].” (ECF No. 98 at 2—3.) For the reasons explained above, this objection is
without merit.
* * *
For the foregoing reasons, Plaintiff Daniel Moore’s objections (ECF No. 98) to the
Report and Recommendation of Magistrate Judge Parker (ECF No. 97) are overruled, and Judge
Parker’s Report is adopted. The Court also concludes that there was no error in Judge Parker
opinion and order setting aside the certificate of default (ECF No. 96). Accordingly, Plaintiff’s
motion for default judgment against Defendant Jones (ECF No. 85) is denied.
The Clerk of Court is respectfully directed to mail a copy of this order to Plaintiff.
SO ORDERED.
Dated: June 26, 2023
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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