Frank v. Visions Multi Media Group-WUFO Radio LLC

Filing 17

ORDER denying 13 Motion for Default Judgment; granting 15 Motion to vacate entry of default; awarding attorney's fees to Plaintiff for all time spent in connection with the requests for default and default judgment; Answer or responsive pleading due within 30 days; Discovery to be concluded 1/20/20; Motion deadline 2/21/20 and parties are to be trial ready by 3/13/20. Signed by Hon. William K. Sessions III on 8/21/19. (SG)

UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
ROBERT FRANK,
Plaintiff,
v.
VISIONS MULTI MEDIA GROUP – WUFO
RADIO LLC,
Defendant.

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Case No. 1:17-CV-817

OPINION AND ORDER
Plaintiff Robert Frank brings this case against Visions
Multi Media Group-WUFO Radio LLC (“WUFO”), claiming that he was
discriminated against on the basis of his religion and his
gender when he was terminated from his job.

His Complaint seeks

monetary damages for lost wages and benefits, compensatory
damages for mental anguish and emotional distress, punitive
damages, reinstatement, interest, costs and attorneys’ fees.
Currently before the Court is Frank’s motion for default
judgment (ECF No. 13).

For the reasons that follow, the Court

denies the motion for default judgment and orders that the
default entered by the clerk (ECF No. 12) be vacated.
BACKGROUND
The Complaint in this case claims that Frank began working
at WUFO on January 4, 2016.

During the course of his

employment, he was subjected to “numerous comments regarding his

religion and gender” by WUFO’s CEO/Operations Manager, acting
General Manager, and majority owner, Sheila Brown.
Specifically, the Complaint alleges that Ms. Brown: (1) told
Frank he was not “God like” and that God had told her he needed
to perform in a “Christian manner”; (2) would pray with people
in the office and pressured Frank to become “a member” of her
religious organization; (3) would often state her preference for
working with female staff; and (4) accused Frank of organizing a
“station takeover.”

Frank was terminated on April 28, 2016.

On or about June 15, 2016, Frank filed a charge of unlawful
discrimination with the Equal Employment Opportunity Commission
(“EEOC”).

On April 21, 2017, the EEOC determined that WUFO had

discriminated against him, and on May 23, 2017 issued a right to
sue letter.

Frank filed suit in this Court on August 18, 2017.

WUFO answered the Complaint and filed affirmative defenses.
(ECF No. 4).

The parties appeared on March 27, 2018 for a

scheduling conference, and a pretrial case management order was
issued on April 2, 2018.

On April 30, 2018, Frank filed a

motion to dismiss WUFO’s answer based upon opposing counsel’s
failure to comply with the case management order. (ECF No. 8).
On May 17, 2018, the Court issued a text order setting a
response deadline of June 18, 2018, and a reply deadline of July
2, 2018.

The Court went on to state that should oral argument

be necessary, a hearing would be scheduled at a later date.
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On

June 25, 2018, with no response having been filed, the Court
granted as unopposed Frank’s motion to dismiss defendant’s
answer. (ECF No. 10).
On July 10, 2018, Frank applied to the Court to enter
default against WUFO pursuant Federal Rule of Civil Procedure
55.

(ECF No. 11).

In support of his application, Frank

submitted an affidavit in which he stated that WUFO had failed
to provide mandatory disclosures or comply with mandatory ADR
provisions.

The clerk’s office entered a default on July 11,

2018. (ECF No. 12).
On October 16, 2018, Frank filed a motion for default
judgment.

A telephonic hearing on said motion was held on

January 22, 2019.

At the hearing, defendant’s counsel asked for

additional time to respond to the motion.

The Court granted

defendant’s request and allowed an additional two weeks, with
plaintiff being allowed ten days to reply to any response. The
Court made it clear that should a response not be filed, it
would schedule another hearing and plaintiff was to file a
proposed order.
Defendant submitted a response to the motion for default
judgment, arguing that due to his heavy trial calendar counsel
had “inadvertently failed” to send plaintiff’s counsel voluntary
discovery.

Defendant went on to state that this inadvertent

failure did not prejudice plaintiff, nor was it “willful or
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intentionally done to defy this Court’s Order or to protract
this litigation.”
Defendant’s counsel further stated that in addition to the
trial demands on his schedule, he became ill on June 2, 2018
with what he believed to be a food born illness, and was
subsequently diagnosed with cardiomyoptathy due to fatigue.
Counsel was able to take some time off to recuperate before he
began another trial on September 26, 2018.

In the course of the

trial, defense counsel reportedly experienced another medical
issue that was diagnosed as vertigo.

The trial concluded on

October 12, 2018.
Defense counsel contends that he tried to log into his
PACER account on January 18, 2019 and that the account was
“inactive.”

He explored the Western District of New York

website in search of pleadings in another matter when he first
discovered emails notifying him of the hearing scheduled for
January 22, 2019 in the instant case.

Accordingly, counsel

participated in the hearing and has been responsive to the
motion for default judgment.
DISCUSSION
A “court may set aside an entry of default for good cause.”
Fed. R. Civ. P. 55(c).

In determining whether good cause to

relieve a party from default exists, the Second Circuit has
directed courts to assess three factors: “(1) whether the
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default was willful; (2) whether setting aside the default would
prejudice the adversary; and (3) whether a meritorious defense
is presented.”
Cir. 1993).

Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d

Because there is a strong preference for resolving

disputes on the merits, New York v. Green, 420 F.3d 99, 104 (2d
Cir. 2005), the Rule 55(c) standard is lenient, Meehan v. Snow,
652 F.2d 274, 277 (2d Cir. 1981).

Accordingly, “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.
Here, WUFO’s counsel first submits that the default was not
willful.

Willfulness refers to “conduct that is more than

merely negligent or careless.”
738 (2d Cir. 1998).

S.E.C. v. McNulty, 137 F.3d 732,

A court should refuse to vacate a default

where there was deliberate conduct, such as “a strategic
decision to default.”

Am. Alliance Ins. Co., Lt. v. Eagle Ins.

Co., 92 F.3d 57, 60–61 (2d Cir. 1996).

Here, a confluence of

events, including heavy workload and physical illness, resulted
in failures to adhere to discovery requirements.

There is no

indication of deliberate or willful conduct on the part of
WUFO’s counsel.
WUFO next argues that plaintiff was not injured by its
failure to provide voluntary discovery.

Frank submits that

counsel’s conduct has prevented him from pursuing his claims for
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over a year.

The Second Circuit has held, however, that delay

alone is insufficient to show prejudice.
F.3d at 98.

Enron Oil Corp., 10

WUFO also notes that any prejudice arising from a

lack of shared discovery is tempered by the fact that plaintiff
received his entire employment record in the course of a
previous administrative proceeding before the New York
Department of Labor.
Finally, WUFO contends that it can present a meritorious
defense to the claim of unlawful discrimination.

In order to

establish a meritorious defense, a defendant need not prove the
defense conclusively.

See Securities and Exchange Commission v.

McNulty, 137 F.3d 732, 740 (2d Cir. 1998).

Rather, the

defendant need only present some evidence of facts that, “if
proven at trial, would constitute a complete defense.”

Enron

Oil, 10 F.3d at 98. Such evidence must consist of more than
conclusory denials.

See id.; accord Sony Corp. v. Elm State

Electronics, Inc., 800 F.2d 317, 320–21 (2d Cir.1986) (requiring
“underlying facts” to establish the existence of a meritorious
defense).

That said, the requirement is subject to a “low

threshold” that may be met where defendants “deny all material
allegations and stand ready to assert several affirmative
defenses.”

Holford USA Ltd. Inc. v. Harvey, 169 F.R.D. 41, 44

(S.D.N.Y. 1996); see also United States v. Moradi, 673 F.2d 725,
727 (4th Cir. 1982) (“[A]ll that is necessary to establish the
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existence of a ‘meritorious defense’ is a presentation or
proffer of evidence, which, if believed, would permit either the
Court or the jury to find for the defaulting party.”); 10A Fed.
Prac. & Proc. Civ. § 2697 (4th ed.) (“The demonstration of a
meritorious defense is not expressly called for by the federal
rules and, therefore, the nature and extent of the showing that
will be necessary is a matter that lies within the court's
discretion.”).
Here, WUFO submits that Frank created a hostile work
environment, and at times became belligerent toward the
employees he was tasked with supervising.

WUFO further contends

that it will discredit Frank’s allegations of gender and
religion-based discrimination, and that he was in fact
terminated after he spoke negatively about the station’s owner
and tried to have himself installed as the station manager.
These facts, if proven, would serve as defenses to Frank’s
claims of discrimination.
Accordingly, the Court finds that WUFO has satisfied the
lenient standard for vacating the entry of default.

WUFO’s

response to the request for a default, construed as a motion to
set aside the entry of default, is granted and the default
entered by the clerk’s office is vacated.

See Meehan v. Snow,

652 F.2d 274, 276 (2d Cir. 1981) (“Even if a default had been
entered, opposition to a motion for a default judgment can be
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treated as a motion to set aside the entry of a default despite
the absence of a formal Rule 55(c) motion.”).

Frank’s motion

for default judgment is denied.
The striking of WUFO’s answer will not, however, be set
aside.

WUFO shall file an answer or other responsive pleading

within 30 days of the date of this Opinion and Order.

If WUFO

fails to file a responsive pleading within that time period, the
default will be reinstated.

See, e.g., Oliner v. McBride’s

Indus., Inc., 102 F.R.D. 561, 564 (S.D.N.Y. 1984).
The Court further finds that Frank is entitled to
attorney’s fees for the time expended on the requests for entry
of a default and a default judgment.

Courts in this Circuit

routinely award such fees when vacating a default.

See, e.g.,

Nikolaeva v. Home Attendant Servs. of Hyde Park, 2018 WL
6984837, at *6 (E.D.N.Y. Nov. 16, 2018), report and
recommendation adopted, 2019 WL 147721 (E.D.N.Y. Jan. 9, 2019)
(collecting authorities).
and foreseeable.

Frank’s motions were both reasonable

If the parties cannot agree on the amount of

such costs and fees, Frank shall submit an affidavit supported
by reference to contemporaneous time records.
CONCLUSION
As explained above, the Court denies Frank’s motion for a
default judgment (ECF No. 13) and grants Defendants’ motion to
vacate the entry of default (ECF No.15).
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In addition, Plaintiff

is awarded attorney’s fees for all time spent in connection with
the requests for default and default judgment.
WUFO shall file an answer or other responsive pleading
within 30 days.

Discovery in this matter shall be concluded by

January 20, 2020, with a motion filing deadline of February 21,
2020, and be trial ready by March 13, 2020.
Dated at Burlington, in the District of Vermont, this 21st
day of August, 2019.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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