Figueroa v. McGuire

Filing 9

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER denying 6 Motion for Entry of DefaultCourt to separately enter Scheduling Order.So Ordered. Signed by Hon. Hugh B. Scott on 4/7/2014. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIAM FIGUEROA,
Plaintiff,
Hon. Hugh B. Scott
13CV240S
v.
Order

SGT. D. McGUIRE,
Defendant.

Before the Court is plaintiff’s motion for entry of default (what he termed a “default
judgment” but, under Rule 55(a), this Court deems to be for entry of default) (Docket No. 6).
BACKGROUND
This is a pro se plaintiff’s civil rights action against corrections sergeant McGuire for
alleged excessive force applied upon plaintiff in 2011 (Docket No. 1, Compl.). Plaintiff claims
that McGuire was served by the United States Marshal on April 24, 2013, and failed to answer
(see Docket No. 6). An Order to Show Cause was entered on February 27, 2014, to show cause
why the case should not be dismissed for failure to prosecute (Docket No. 5). Plaintiff, on
March 25, 2014, then filed the present motion for entry of default (Docket No. 6). The next day,
defendant filed his Answer (Docket No. 7). On April 3, 2014, this case was referred by Chief
Judge William Skretny to the undersigned (Docket No. 8).

DISCUSSION
A preliminary matter is whether, under 28 U.S.C. § 636, this Court can decide this
motion or whether it can make a recommendation to Chief Judge Skretny. The default judgment
plaintiff seeks here is obtained under a two-step process under Rule 55; “first, the entry of a
default, and second, the entry of a default judgment,” City of N.Y. v. Mickalis Pawn Shop, LLC,
645 F.3d 114, 128 (2d Cir. 2011); New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005); Fed. R.
Civ. P. 55(a), (b). That first step plaintiff filed here is ministerial where a defendant fails to
plead or otherwise defend an action, the Court Clerk “must enter the party’s default,” Fed. R.
Civ. P. 55(a); Mickalis Pawn Shop, supra, 645 F.3d at 128; Pinaud v. County of Suffolk, 52 F.3d
1139, 1152 n.11 (2d Cir. 1995) (describing entry of default as “largely a formal matter,” internal
quotation marks omitted). The entry of default establishes liability but not an admission of
damages, Finkel v. Romanowicz, 577 F.3d 79, 83 n.6 (2d Cir. 2009); Mickalis Pawn Shop,
supra, 645 F.3d at 128, the establishment of damages arises from the second step of entry of
default judgment, see Fed. R. Civ. P. 55(b). That second step also formally terminates the
litigation and awards plaintiff relief, with entry of that judgment by the District Judge (rather
than by the Court Clerk), Mickalis Pawn Shop, supra, 645 F.3d at 128, 129.
Section 636 of the Judiciary code, 28 U.S.C. § 636, establishes the jurisdiction of the
undersigned. As to certain dispositive motions (such as to dismiss or to suppress evidence in a
criminal trial), this Court can only recommend to the referring District Judge for ultimate action,
id., § 636(b)(1)(A). The listed motions do not include a motion to enter a default judgment,
although this would be dispositive, or a motion (such as here) to enter default. Usually, cases are
referred to a Magistrate Judge under § 636 after joinder of issue, that is after a defendant has
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answered or otherwise appeared in the case, but § 636(b)(1)(A) authorizes referral of “any
pretrial matter pending before the court,” without specifying that all parties need to have
appeared in the action first.
Since what is involved here is the first, ministerial step that the Court Clerk could enter
without judicial action, this Court by Order can consider whether default has occurred, see also
Andino v. Cummins, et al., No. 12CV852, Docket No. 21, Order of Mar. 13, 2014 (Scott, Mag.
J.) (Order of undersigned denying motion for entry of default). This differs from a motion for
entry of a default judgment, which this Court could only enter a Report & Recommendation, see
Prescription Containers, Inc. v. Cabiles, No. 12 Civ. 4805, 2014 U.S. Dist. LEXIS 40250, at *2
(E.D.N.Y. Feb. 14, 2014) (Scanlon, Mag. J.) (Report & Recommendation), adopted, 2014 U.S.
Dist. LEXIS 39590 (E.D.N.Y. Mar. 24, 2014).
Here, defendant filed his Answer the day after plaintiff filed his motion for entry of
default. There were ten months of inaction in this case from all parties before the Show Cause
Order was filed. Thus, any prejudice in the delay in this action arose during that period. Since
defendant promptly filed his Answer upon plaintiff’s filing, plaintiff’s motion for entry of default
is denied.
This Court will separately enter a Scheduling Order in this case.

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CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 6) for entry of default is
denied.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
April 7, 2014

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