Clark v. New York City Housing Authority et al
Filing
190
ORDER: vacate 182 Letter Motion for Leave to File Document; withdrawing without prejudice to reinstatement 183 Motion for Default Judgment. Nonetheless, given the onerous effect of a default judgment, due process requires the Court to allow NYI ES to file a formal motion to set aside the default if it wishes. We thus construe NYIES's letter motion (Docket # 182) as a request for a pre-motion conference to file a motion to set aside (that is, vacate) the default and waive the pre-motion conference requirement. NYIES shall file its motion by May 3, 2021. Any opposition is due May 10, 2021. NYIES may file a reply by May 17, 2021. These filing deadlines may be extended by the parties' agreement as long as the agreement is disc losed to the Court by means of a letter filed on ECF or in NYIES's notice of motion. In light of this ruling, Clark's motion for a default judgment (Docket # 183) is deemed withdrawn without prejudice to reinstatement should the default not be set aside. Because discovery cannot proceed until NYIES's status is resolved, the deadlines set forth in this Court's previous scheduling order (Docket # 145) are adjourned sine die. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 4/26/2021) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LA’SHAUN CLARK,
:
Plaintiff,
:
-v.:
NEW YORK CITY HOUSING AUTHORITY,
NEW YORK INSULATION &
ENVIRONMENTAL SERVICES, JLC
ENVIRONMENTAL CONSULTANTS, INC.,
ROCKMILL STEEL PRODUCTS CORP..
ORDER
20 Civ. 251 (PAE) (GWG)
:
:
:
Defendants.
:
---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff La’Shaun Clark obtained a certificate of default against defendant New York
Insulation & Environmental Services (“NYIES”) on August 14, 2020 (Docket # 95). Clark then
filed a motion for a default judgment against NYIES (see Motion for Default Judgment, filed
December 3, 2020 (Docket # 135)), but the motion was deemed withdrawn after the Court found
that the certificate did not show proper service. See Memo Endorsed Order, filed March 17,
2021 (Docket # 166). The Court allowed Clark “until April 30, 2021 to effectuate service of the
Amended Complaint on [NYIES],” id., and on April 5 and 7, 2021, Clark filed affidavits of
service demonstrating that she had served the Amended Complaint on NYIES (Docket ## 17475). Clark then obtained another certificate of default on April 21, 2021 (Docket # 180). The
day after, NYIES’s counsel entered his notice of appearance (Docket # 181) and filed a letter
motion requesting that the Court vacate the certificate of default and grant NYIES leave to file its
Answer to the Amended Complaint (Docket # 182). Clark filed a new motion for a default
judgment the same day (Docket # 183), and NYIES responded shortly thereafter asking that the
motion be denied (Docket # 186). Plaintiff filed a response on April 23, 2021 (Docket # 188).
NYIES argues that the certificate should be vacated because “[t]he twenty-one days to
Answer Plaintiff’s Amended Complaint received on April 5, 2021 has not expired.” Docket
# 182 at 1. However, NYIES does not contest that Clark properly effectuated service of the
amended complaint by serving the New York Secretary of State on March 18, 2021 (see Docket
# 174). Thus, the 21-day period in fact expired by the time the certificate of default issued.
While NYIES asserts that it never received any mailing from the Secretary of State, such an
assertion is insufficient by itself to meet the “good cause” standard necessary to set aside an
entry of default under Fed. R. Civ. P. 55(c). See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96
(2d Cir. 1993).
Nonetheless, given the onerous effect of a default judgment, due process requires the
Court to allow NYIES to file a formal motion to set aside the default if it wishes. We thus
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construe NYIES’s letter motion (Docket # 182) as a request for a pre-motion conference to file a
motion to set aside (that is, vacate) the default and waive the pre-motion conference requirement.
NYIES shall file its motion by May 3, 2021. Any opposition is due May 10, 2021. NYIES may
file a reply by May 17, 2021. These filing deadlines may be extended by the parties’ agreement
as long as the agreement is disclosed to the Court by means of a letter filed on ECF or in
NYIES’s notice of motion.
In light of this ruling, Clark’s motion for a default judgment (Docket # 183) is deemed
withdrawn without prejudice to reinstatement should the default not be set aside. Because
discovery cannot proceed until NYIES’s status is resolved, the deadlines set forth in this Court’s
previous scheduling order (Docket # 145) are adjourned sine die.
SO ORDERED.
Dated: April 26, 2021
New York, New York
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