Nelson v. Gleason et al
Filing
25
ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER denying 22 Motion for Reconsideration re 22 MOTION for Reconsideration re 20 Request for Clerk's Entry of Default filed by Lionell Nelson, 20 Requ est for Clerk's Entry of Default filed by Lionell NelsonPlaintiff's Motion (termed one for reconsideration) for Entry of Default(Docket No. 22) is denied.Defendants to re-serve the Answer within 10 days of entry of this Order.Copy of Order mailed to plaintiff at Clinton Correctional Facility by Chambers.So Ordered. Signed by Hon. Hugh B. Scott on 11/22/2016. (DRH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LIONELL NELSON,
Plaintiff,
Hon. Hugh B. Scott
14CV870A
v.
Order
LARRY GLEASON, et al.,
Defendants.
Before the Court is pro se plaintiff’s motion for entry of default against defendants,
deemed by this Court to be a motion for reconsideration of the Court Clerk’s denial of entry of
default (Docket No. 22; see Docket Nos. 20 (plaintiff’s Request for Clerk’s Entry of Default), 23
(briefing Order). In addition to characterizing the pro se plaintiff’s motion as a reconsideration
motion, this Order scheduled responses to be due November 3, 2016 (Docket No. 23) (including
calling for an explanation for the timing of defendants’ Answer), which defendants dated their
response that date but served and filed the next day (Docket No. 24); plaintiff’s reply was due by
November 15, 2016 (Docket No. 23).
BACKGROUND
Plaintiff, an inmate proceeding pro se, sued defendant corrections officers for alleged
excessive force, in violation of the Eighth Amendment, and state tort claims for assault and
negligence (Docket No. 1, Compl.), with the Complaint filed on October 20, 2014. Plaintiff also
moved for in forma pauperis status (Docket Nos. 2, 3), which was granted on May 14, 2015, with
service of process to be provided by the United States Marshal Service (Docket No. 4). The
summonses issued by the Marshal were returned unexecuted on February 19, 2016 (Docket
No. 10).
Meanwhile, moved for injunctive relief (Docket No. 5, motion of June 12, 2015), for
appointment of counsel (Docket No. 6, motion of October 23, 2015), and later for service of
defendants by the Marshal (Docket No. 7, motion of January 7, 2016), and to compel disclosure
of defendants’ addresses (Docket No. 8, motion of January 7, 2016). The case then was referred
to the undersigned on April 11, 2016 (Docket No. 11). On April 12, 2016, plaintiff’s motion for
service and for discovery were granted, in effect extending the time for service; his motion for
appointment of counsel was denied and the remaining motions for injunctive relief were deemed
moot (Docket No. 12). Noting that service by the Marshal resulted in the return of unexecuted
summonses (id. at 2), this Court extended the time for service (id. at 2-3). The Attorney
General’s office was requested to provide defendants’ addresses by May 27, 2016 (id. at 3).
The summonses then were returned executed on April 27, 2016, with defendants’ time to
answer due by May 11, 2016 (Docket No. 131; see also Docket Nos. 15 (Court informing
plaintiff of status of this service), 14 (plaintiff’s letter inquiring about the status of service)).
With no activity in this case since the filing of correspondence from plaintiff on May 26, 2016
(Docket No. 15; see Docket No. 14), on September 21, 2016, this Court noted that fact and
ordered the parties to report the status of the case, giving them until October 5, 2016, to report
(Docket No. 16).
Defendants’ response to this motion contends that their time to answer was actually
May 5, 2016, Docket No. 24, Defs. Atty. Decl. ¶ 4.
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On September 29, 2016, defendants filed their Answer with certificate of service
claiming service upon plaintiff at his facility on the same date (Docket No. 17). There,
defendants asserted with their admissions and denials of plaintiff’s allegations seventeen
affirmative defenses, including sovereign immunity, plaintiff’s failure to exhaust his claims
administratively, and failure to state a claim (id.). Pursuant to this Court’s usual practice in pro
se inmate cases, upon filing of that Answer a Scheduling Order was issued (Docket No. 18).
Plaintiff wrote on September 26, 2016, that he had not been served with an Answer (Docket
No. 19). Plaintiff then filed a Request for Clerk’s Entry of Default on October 4, 2016 (Docket
No. 20), which the Court Clerk did not enter due to the previously filed Answer (notice on
docket, Oct. 4, 2016; see Docket No. 17). Plaintiff claims on October 3, 2016 (after the
defendants assert the Answer was served) that he still had not been served with an Answer
(Docket No. 21).
Plaintiff filed on October 11, 2016, the pending motion (now deemed to be a motion for
reconsideration) seeking the Court Clerk to enter default (Docket No. 22). Plaintiff argues that
defendants failed to answer or to seek an extension of time to answer (id. Pl. Aff. ¶¶ 1-2). To
date, plaintiff has not claimed that he has been served with the Answer.
Defendants respond that they returned process on April 20, 2016, through counsel (see
Docket No. 13), manifesting counsel’s intention to appear and defend (Docket No. 24, Defs.
Atty. Decl. ¶ 3). Defense counsel explained the office’s normal reminder system for the
numerous pro se cases against the Attorney General’s clients that noted the deadline dates for
serving Answers and said here that this system broke down when counsel forgot to set the
deadline here and was missed (id. ¶¶ 5, 4). Defense counsel admits that he did not realize an
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Answer was due until four months had passed and upon this Court’s Order requiring a status
report (id. ¶ 5). Defendants argue that they have meritorious defense and plaintiff cannot show
any prejudice from the four-month delay (id. ¶ 6).
After giving plaintiff about one week beyond the deadline, plaintiff did not reply.
DISCUSSION
“Rule 55(a) of the Federal Rules of Civil Procedure provides that ‘[w]hen a party against
whom a judgment . . . 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.’ Fed. R. Civ. P. 55(a).
Rule 55(c) provides that ‘[t]he court may set aside an entry of default for good cause, and it may
set aside a default judgment under Rule 60(b).’ Fed. R. Civ. P. 55(c),” Rolle v. Hardwick,
No. 14-cv-5247, 2016 U.S. Dist. LEXIS 60112 (E.D.N.Y. May 4, 2016) (Shields, Mag. J.),
adopted 2016 U.S. Dist. LEXIS 68967 (E.D.N.Y. May 25, 2016). In Rolle, the pro se plaintiff
sought entry of default against a defendant (the former mayor who failed to answer) and that
defendant later moved, in the interest of justice, to set aside the clerk’s notice of default and for
leave to file a late Answer, 2016 U.S. Dist. LEXIS 60112, at *6, 4.
Entry of default is an extreme sanction, seen by courts as a “weapon of last, rather than
first resort,” Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). “The dispositions of motions
for entries of defaults and default judgments and relief from the same under Rule 55(c) are left to
the sound discretion of a district court because it is in the best position to assess individual
circumstances of a given case and to evaluate the credibility and good faith of the parties,” Enron
Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993); Rolle, supra, 2016 U.S. Dist. LEXIS
60112, at *6. This Court must consider the willfulness of a default in exercising its discretion
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whether to set it aside, Rolle, supra, 2016 U.S. Dist. LEXIS 60112, at *7, citing Weisel v.
Pischel, 197 F.R.D. 231, 238 (E.D.N.Y. 2000). “Any doubt ‘as to whether a default should be
granted or vacated’ must be ‘resolved in favor of the defaulting party,’” Rolle, supra, 2016 U.S.
Dist. LEXIS 60112, at *6, quoting Enron Oil, supra, 10 F.3d at 96.
The Second Circuit has three criteria in determining whether “good cause” exists to
relieve a party of default: “(1) whether the default was willful; (2) whether setting aside the
default would prejudice the adversary; and (3) whether a meritorious defense is present,” Rolle,
supra, 2016 U.S. Dist. LEXIS 60112, at *6, citing Enron Oil, supra, 10 F.3d at 96.
“Willfulness,” in turn, has been defined in this context as conduct that is “more than merely
negligent or careless,” S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir. 2008); Rolle, supra,
2016 U.S. Dist. LEXIS 60112, at *6. This same standard applies for leave to serve a late
Answer, for if leave were denied the result would be the same as entry of default, Graves v.
Correctional Med. Serv., No. 1cv1005, 2015 U.S. Dist. LEXIS 54928, at *3-4 (W.D.N.Y.
Mar. 13, 2015) (McCarthy, Mag. J.). Prejudice here is more than mere delay; the plaintiff must
show that the delay caused a loss of evidence, adds difficulties in discovery, or “provide[s]
greater opportunity for fraud and collusion,” Rolle, supra, 2016 U.S. Dist. LEXIS 60112, at *7
(quoting Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983)). For the meritorious defense,
defendants “need not conclusively establish the validity of the defense(s) asserted,” Davis v.
Musler, 713 F.2d 907, 916 (2d Cir. 1983); Rolle, supra, 2016 U.S. Dist. LEXIS 60112, at *8, but
they “must, nonetheless, articulate a defense with a degree of specificity which directly relates
that defense to the allegations set forth in the plaintiff’s pleadings and raises a ‘serious question’
as to the validity of those allegations,” De Curtis v. Upward Bound Int’l, Inc., No. 09 Civ. 5378,
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2012 U.S. Dist. LEXIS 143295, at *22 (S.D.N.Y. Sept. 27, 2012) (citation omitted), aff’d,
529 Fed. App’x 85 (2d Cir. 2013) (summary order); Rolle, supra, 2016 U.S. Dist. LEXIS 60112,
at *8. Willfulness is the factor “that ‘carries the most weight,’” Hunt v. City of Auburn,
No. 5:13-cv-1039, 2014 U.S. Dist. LEXIS 162083, at *5 (N.D.N.Y. Nov. 19, 2014) (quoting De
Curtis, supra, 529 Fed. App’x at 86).
The decision in Rolle is informative. There, the court found that there was no willfulness
in defendant’s part since he was no longer in office when plaintiff sued him. Plaintiff served
defendant’s former office rather than defendant personally. Rolle, supra, 2016 U.S. Dist. LEXIS
60112, at *6-7. As for prejudice, the court held that plaintiff did not articulate any specific
prejudice and the court could not contemplate any prejudice to plaintiff arising from the late
Answer, id. at *7. The defendant also articulated a meritorious defense (lack of personal
involvement in plaintiff’s injuries), id. at *8-9. The Magistrate Judge there recommended setting
aside the default and granting defendant leave to file the late Answer, id. at *9-10, which was
adopted by Judge Cogan, Rolle, supra, 2016 U.S. Dist. LEXIS 68967 (E.D.N.Y. May 25, 2016).
Here, plaintiff (proceeding pro se) was granted in forma pauperis status on May 14, 2015
(Docket No. 4), with the Marshal effecting service of plaintiff’s pleadings (id.), but service was
not achieved. On April 12, 2016, this Court ordered the New York State Attorney General to
provide addresses for defendants by May 27, 2016 (Docket No. 12). The Marshal then filed
proof of service of the Complaint upon defendants; they were served on April 20, 2016, with
their Answers due by May 11, 2016 (Docket No. 13). There were no filings with this Court and
the parties were ordered on September 21, 2016, to submit a status report by October 5, 2016
(Docket No. 16). Defendants then filed their Answer (Docket No. 17) on September 29, 2016,
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without formally seeking leave to file late and without then explaining this tardiness (cf. Docket
No. 21; but cf. Docket No. 24). The Answer had with it a Certificate of Service (Docket No. 17)
that stated defendants served plaintiff by mailing a copy of the Answer on September 29 (id.,
Cert. of Service). Plaintiff now claims that he had not been served with the Answer (Docket
No. 21), although this claim was dated October 3, 2016 (id.). This may be the reverse of the
mailbox rule that applies for delivery of inmate mail, see Houston v. Lack, 487 U.S. 266, 271
(1988) (a pro se prisoner litigant’s papers are deemed to have been filed when they are placed in
the hands of prison officials for mailing); see also Dory v. Ryan, 999 F.2d 679, 682 (2d Cir.
1993), modified on reh’g, 25 F.3d 81 (2d Cir. 1994), that the facility may have received the
mailed Answer but plaintiff had not yet received it himself.
Plaintiff now renews his demand for entry of default because he had yet to be served with
an Answer and that the purported Answer is untimely and the delay in service remains
unexplained (Docket No. 21). Since defendants had filed their Answer before plaintiff sought
the entry of default, the Court Clerk denied that entry (docket notation, Oct. 4, 2016, entered,
Oct. 5, 2016). Apparently, the Court Clerk accepted defendants’ representation that they served
the Answer on the same day it was filed (cf. Docket No. 17, Ans. Cert. of Service). This Court
then deemed plaintiff’s second request for the Clerk’s entry as a motion to reconsider (see
Docket No. 24).
Applying the Second Circuit’s test for determining good cause for the belated Answer or
to not enter default and as for defendants’ willfulness, the record here does not indicate that
defendants willfully refused to answer or delayed in answering, thus defendants’ default was not
willful. The delay arose from law office failure, since counsel failed to note the deadline for
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answering (see Docket No. 24, Defs. Atty. Decl. ¶¶ 4-6), see Hunt, supra, 2014 U.S. Dist. LEXIS
162083 at *5-7 (in pro se action, defendant’s default was due to law office failure and not willful
conduct, granting motion to set aside default); Elexco Land Servs. v. Hennig, No. 11CV214,
2011 U.S. Dist. LEXIS 44207, at *3-4, 5 (W.D.N.Y. Apr. 25, 2011) (Arcara, J.) (failure of
defense counsel to diary Answer due date was careless and apparently not willful, granting
motion to set aside default against defendant). As also noted by this Court, “it is well settled in
this Circuit that an isolated episode of law office failure, unaccompanied by any showing of bad
faith or strategic purposefulness, does not amount to willfulness,” Hines v. Veterans Outreach
Ctr., No. 10CV6493, 2010 U.S. Dist. LEXIS 130836, at *2 (W.D.N.Y. Dec. 10, 2010) (Larimer,
J.) (in granting defendant’s motion to extend time to answer in pro se action, also finding no
evidence that plaintiff would be prejudiced by granting extension; citations omitted). This
differs from Richardson v. Nassau County, 184 F.R.D. 497, 502 (E.D.N.Y. 1999), where defense
counsel missed two conferences and argued that the volume of cases caused law office failure,
id. at 499-501; the court there found this to be a “borderline case,” id. at 502, involving
“deliberate indifferen[ce],” id. at 499, on defense counsel’s part (the Nassau County Attorney’s
office) and defendant’s “obstructionist tactics during discovery,” id. at 502, but then found that
the default was not willful and ultimately vacated the default (on conditions), id. The court there
found that this conduct was “not the kind of ‘willfulness’ and ‘bad faith’ contemplated” in
American Alliance Ins. Co. v. Eagle Ins. Co., 92 F.2d 57, 61 (2d Cir. 1996), to constitute
willfulness, 184 F.R.D. at 502.
There is no prejudice to plaintiff in allowing defendants, essentially nunc pro tunc, leave
to file a late Answer. Both sides did not act between May 26 and September 29, 2016, with
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plaintiff under the impression this Court would contact him after the Answer deadline (see
Docket No. 19) and defense failing to calendar the filing deadline. Following filing of the
Answer, this Court entered a standard Scheduling Order with deadlines consistent for other pro
se inmate actions (Docket No. 18). Prior to that, there was no activity in the case. Plaintiff was
not put at a disadvantage by the delay in defendants answering. The four-month delay in
answering, while significant, is not prejudicial. Plaintiff had longer delays in the consideration
of his in forma pauperis application and the time between attempts at service by the Marshal.
There has been no loss of evidence (or at least none alleged) or additional difficulties in
conducting discovery, which has just begun. Given plaintiff’s present motion, this Court will
entertain a motion to extend the Scheduling Order (Docket No. 18) deadlines to not prejudice
any party for lack of time to investigate this matter.
Finally, defendants have a meritorious defense. Defendants raise in their Answer
(Docket No. 17) standard procedural defenses (such as failure to state a claim, immunity under
the Eleventh Amendment, claim being barred under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997(e), for failure to exhaust administrative relief, and limits on plaintiff’s ultimate recovery
of compensatory damages under state law). These defenses go beyond conclusory denials and
raise serious question about the validity of plaintiff’s allegations, see De Curtis, supra, 2012 U.S.
Dist. LEXIS 143295, at *22; see also Rolle, supra, 2016 U.S. Dist. LEXIS 60112, at *8-9, that
make them meritorious.
Given the disfavor of entry of default, see, e.g., Richardson, supra, 184 F.R.D. at 502
(strong preference for resolution of disputes on merits), and the fact that defendants have
answered, plaintiff’s request for entry of default again is denied. Defendants also are given
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leave, nunc pro tunc, to file and serve their otherwise late Answer (Docket No. 17), see Van
Gorder v. Workman, No. 03cv6409, 2006 U.S. Dist. LEXIS 3891, at *2 n.1 (W.D.N.Y. Jan. 25,
2006) (Siragusa, J.) (Court treating late Answer as motion to vacate implied default under Rule
55(c)). From the responses on record, there remains the concern that plaintiff may still not have
the Answer served upon him. As a result, defendants are ordered to reserve the Answer within
ten (10) days of entry of this Order.
Finally, this Court will not amend or extend Scheduling Order (Docket No. 18) deadlines
at this time. Of course, upon proper application or motion by any party, this Court will revisit
these deadlines.
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 22) for reconsideration of
the denial of entry of default against defendants is denied. Leave (nunc pro tunc) for defendants
to file their Answer late is granted. Given plaintiff’s unrebutted representation that he had not
received this Answer, defendants are to re-serve the Answer upon plaintiff within ten (10) days
of entry of this Order.
Upon the request of either side, this Court will revisit the deadlines set in the current
Scheduling Order (Docket No. 18).
So Ordered.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
November 22, 2016
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