Pennington v. City of Rochester et al

Filing 59

DECISION AND ORDER: For the reasons stated, the 42 Motion for Judgment on the Pleadings filed by the County and Wilczak is GRANTED IN PART, Pennington's 57 Motion for Default Judgment is DENIED, and the City's 58 Motion to Vacate the Clerk's Entry of Default is GRANTED. Per the terms of Judge Feldman's 55 Order, the parties are directed to contact him regarding further proceedings and the Clerk of Court is directed to remove the stay associated with this case.Addi tionally, the Court notes that the remaining causes of action are as follows: three causes of action against Paul, three causes of action against the City, and one cause of action under Section 1983 against Wilczak. Because the County cannot be held liable under Monell, the Clerk of Court is directed to dismiss the County as a party to this action. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 6/18/18. (JO)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CYNTHIA G. PENNINGTON,
Plaintiff,
Case # 13-CV-6304-FPG
v.
DECISION AND ORDER
CITY OF ROCHESTER, LIEUTENANT ERIC PAUL,
In His Official and Individual Capacity,
COUNTY OF MONROE, and DEPUTY G. WILCZAK,
In His Official and Individual Capacity,
Defendants.

INTRODUCTION
On June 13, 2013, Plaintiff Cynthia G. Pennington filed a Complaint alleging various
claims against Defendants City of Rochester and Lieutenant Eric Paul. ECF No. 1. Specifically,
Pennington alleged six causes of action: (1) intentional infliction of emotional harm against Paul;
(2) negligent infliction of emotional harm against Paul; (3) a cause of action under 42 U.S.C. §
1983 (“Section 1983”) against Paul alleging that he violated Pennington’s Fourth and Fourteenth
Amendment rights; (4) the City failed to train Paul in violation of Section 1983; (5) the City ratified
Paul’s misconduct in violation of Section 1983; and (6) the City had a policy, practice, or custom
of encouraging Paul’s misconduct in violation of Section 1983. See ECF No. 1.
On September 6, 2013, Pennington filed another Complaint against Defendants County of
Monroe and Deputy G. Wilczak under case number 13-CV-6480 containing facts and six causes
of action identical to those alleged in her first Complaint. See 13-CV-6480, ECF No. 1. The
causes of action follow the same pattern as those in the Complaint against the City and Paul: the
same three causes of action in the same order against Wilczak, and the same three causes of action
in the same order against the County. Id.

The City answered Pennington’s first Complaint on November 26, 2013, over four months
after it was due. See ECF Nos. 3, 5. On December 3, 2013, the case was referred to United States
Magistrate Judge Jonathan W. Feldman for pretrial proceedings. See ECF No. 6. Three days later,
on December 6, 2013, Plaintiff moved to consolidate both of her cases—13-CV-6304 and 13-CV6480—into one case. See ECF No. 7. The Court granted the Motion on January 13, 2014, and
both actions were thereafter maintained under the current case number: 13-CV-6304. See ECF
No. 11.
On February 26, 2014, Pennington requested the Clerk of Court to enter default against the
City for failing to timely answer the Complaint. See ECF No. 20. The Clerk obliged the next day.
See ECF No. 22.
On August 5, 2014, the County and Wilczak moved for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c). See ECF No. 42. Nearly a year later, on May 11, 2015,
Pennington moved to stay discovery proceedings pending a decision on the Motion for Judgment
on the Pleadings. See ECF No. 51. Judge Feldman subsequently granted the motion. See ECF
No. 55.
On July 23, 2015, Pennington moved for default judgment against the City for failing to
timely answer her Complaint. See ECF No. 57. In response, the City moved to vacate the Clerk’s
entry of default the next day. See ECF No. 58.
Currently before the Court is the Motion for Judgment on the Pleadings filed by the County
and Wilczak, Pennington’s Motion for Default Judgment, and the City’s Motion to Vacate the
Clerk’s Entry of Default. For the reasons stated, the Motion for Judgment on the Pleadings is
GRANTED IN PART, the Motion for Default Judgment is DENIED, and the Motion to Vacate
the Clerk’s Entry of Default is GRANTED.

2

BACKGROUND 1
On September 13, 2012, at approximately 11:18 p.m., Paul and Wilczak entered
Pennington’s house without a warrant while Pennington was asleep in her bedroom. 13-CV-6480,
ECF No. 1 ¶¶ 24-25. Paul then woke Pennington up. Id. ¶ 26. After Pennington asked why Paul
and Wilczak were in her home, Paul claimed that he and Wilczak were performing a welfare check
on Pennington. Id. ¶ 29. He further stated that he and Wilczak knocked on Pennington’s door and
called for her through the windows, but received no response. Id. Pennington then asked Paul and
Wilczak to leave her home. Id. ¶ 30. They did so. Id. ¶ 31.
After the encounter, Paul and Wilczak created a false police report to conceal their alleged
misconduct. Id. ¶ 38. 2
DISCUSSION
I.

Motion for Judgment on the Pleadings
Motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c)

command the same standard as a motion to dismiss under Rule 12(b)(6). L-7 Designs, Inc. v. Old
Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).
A complaint will survive a motion to dismiss under Rule 12(b)(6) when it states a plausible
claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-56 (2007)). A claim for relief is plausible when the plaintiff pleads sufficient
facts that allow the Court to draw reasonable inferences that the defendant is liable for the alleged
conduct. Iqbal, 556 U.S. at 678.

1

The Court takes the following allegations from Plaintiff’s Complaint, 13-CV-6480, ECF No. 1, and accepts them as
true. Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). The Court also notes that both of Plaintiff’s
Complaints—one filed under 13-CV-6304, the other under 13-CV-6480—contain nearly-identical fact sections; the
13-CV-6304 Complaint does not name Wilczak, while the 13-CV-6480 Complaint does. Also, because the 13-CV6480 Complaint was originally filed against Wilczak and the County, the Court uses that Complaint as the operative
Complaint even though it was not filed under 13-CV-6304. Finally, the Court will summarize the facts concerning
only Wilczak and the County because only those two Defendants move for judgment on the pleadings.
2

The Complaint contains no further factual allegations concerning either Wilczak or the County.

3

In considering the plausibility of a claim, the Court must accept factual allegations as true
and draw all reasonable inferences in the plaintiff’s favor. Faber v. Metro. Life Ins. Co., 648 F.3d
98, 104 (2d Cir. 2011). At the same time, the Court is not required to accord “[l]egal conclusions,
deductions, or opinions couched as factual allegations . . . a presumption of truthfulness.” In re
NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (quotation marks omitted); see also
Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (“As we have repeatedly held, complaints relying
on the civil rights statutes are insufficient unless they contain some specific allegations of fact
indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no
meaning.”).
With these principles in mind, the Court turns first to the causes of action against Wilczak
and then to those against the County.
A.

Deputy G. Wilczak
i.

Intentional and Negligent Infliction of Emotional Harm

“For both negligent and intentional infliction of emotional distress, a plaintiff must show
‘that the defendant's conduct is so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized society.’” Ivery v. Baldauf, 284 F. Supp. 2d 426, 441 (W.D.N.Y. 2018) (quoting Berrios
v. Our Lady of Mercy Med. Ctr., 20 A.D.3d 361, 362 (1st Dep’t 2005)). “In New York, claims for
intentional infliction of emotional distress are ‘extremely disfavored,’ and ‘[o]nly the most
egregious conduct has been found sufficiently extreme and outrageous to establish’ such a claim.”
Id. (quoting Medcalf v. Walsh, 938 F. Supp. 2d 478, 488 (S.D.N.Y. 2013)); see also Semper v.
New York Methodist Hosp., 786 F. Supp. 2d 566, 586 (E.D.N.Y 2011) (“[T]his highly disfavored
cause of action is almost never successful.”).

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Here, Pennington has not plausibly alleged causes of action for either intentional or
negligent infliction of emotional distress (“IIED” and “NIED”).

Assuming the truth of

Pennington’s allegations and viewing them in a light most favorable to her, Wilczak wrongfully
entered her home under the auspices of performing a welfare check on her after knocking on her
door and calling for her through her windows. Those were his only acts—he made no statements,
did not threaten, intimidate, or harass her, and made no physical contact with her. Based on these
allegations, the Court cannot find that Pennington has plausibly alleged causes of action for either
IIED or NIED. Compare Travis v. Village of Dobbs Ferry, 355 F. Supp. 2d 740, 756 (S.D.N.Y.
2005) (refusing to dismiss a claim for IIED on summary judgment where police officers
wrongfully pulled plaintiff over, searched her car, performed a pat frisk, searched her purse, and
performed a strip search) with Abdella v. O’Toole, 343 F. Supp. 2d 129, 140 (D. Conn. 2004)
(dismissing IIED on summary judgment where police officers wrongfully searched plaintiff’s
home) (applying Connecticut law). Consequently, Pennington’s causes of action for IIED and
NIED against Wilczak are DISMISSED. The Court next considers Pennington’s cause of action
under Section 1983.
ii.

Section 1983

Section 1983 imposes civil liability upon any person who, under color of state law, subjects
an individual to the deprivation of any rights, privileges, or immunities protected by the
Constitution or laws of the United States. See 42 U.S.C. § 1983; Wimmer v. Suffolk Cty. Police
Dep’t, 176 F.3d 125, 137 (2d Cir. 1999). Section 1983 is not itself a source of any substantive
rights, but, rather, is a vehicle by which citizens may seek to vindicate rights conferred elsewhere.
Albright v. Oliver, 510 U.S. 266, 271 (1994). “[T]o state a civil rights claim under § 1983, a
complaint must contain specific allegations of fact which indicate a deprivation of constitutional
rights.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). Allegations that amount
5

to “nothing more than broad, simple, and conclusory statements are insufficient to state a claim
under § 1983.” Id.
Here, Pennington alleges that Wilczak acted under color of state law and deprived her of
her Fourteenth and Fourth Amendment rights. 3 See 13-CV-6480, ECF No. 1 ¶¶ 47-53. The Court
addresses each allegation in kind.
a.

Fourteenth Amendment

Where a defendant’s alleged conduct is prohibited, and thus “covered,” by the Fourth
Amendment, a cause of action under the Fourteenth Amendment is the improper vehicle to address
the conduct, and, thus, the cause of action should be dismissed. See, e.g., Cty. of Sacramento v.
Lewis, 523 U.S. 833, 843 (1998) (“Substantive due process analysis is . . . inappropriate . . . if
respondents’ claim is ‘covered by’ the Fourth Amendment.”) Accordingly, Pennington’s Section
1983 cause of action alleging a violation of her Fourteenth Amendment rights against Wilczak is
DISMISSED.
b.

Fourth Amendment

Wilczak makes two arguments in support of his Motion against Pennington’s Fourth
Amendment cause of action. He first argues that he lawfully entered Pennington’s home. Second,
he argues that he is entitled to qualified immunity. The Court addresses each argument below.
1.

Lawful Entry

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures[,]” U.S. Const. amend. IV,
and particularly protects against wrongful entry into the home, see Montanez v. Sharoh, 444 F.
App’x 484, 486 (2d Cir. 2011) (summary order) (quoting Payton v. New York, 445 U.S. 573, 585

3

It is unclear whether Plaintiff is alleging a due process violation when she says her Fourteenth Amendment rights
were violated. Out of an abundance of caution, the Court addresses Plaintiff’s due process cause of action to the extent
it is alleged.

6

(1980)). Consequently, it is well established that warrantless searches and seizures in the home
are presumptively unreasonable. See, e.g., United States v. Simmons, 661 F.3d 151, 156 (2d Cir.
2011) (citing Kentucky v. King, 563 U.S. 452, 459 (2011)).
Even so, police officers may lawfully enter a home without a warrant under certain,
“exigent” circumstances. See, e.g., King, 563 U.S. at 460 (“This Court has identified several
exigencies that may justify a warrantless search of a home.”).

One such exigency is the

“emergency aid” exception, under which a police officer “may enter a dwelling without a warrant
to render emergency aid and assistance to a person whom they reasonably believe to be in distress
and in need of that assistance.” Montanez, 444 F. App’x at 486 (quoting Tierney v. Davidson, 133
F.3d 189, 196 (2d Cir. 1998)).
When courts evaluate an officer’s entry into a home under the emergency aid exception,4
they “must apply an objective standard to determine the reasonableness of the officer’s belief,
taking into account the circumstances then confronting the officer, including the need for a prompt
assessment of sometimes ambiguous information concerning potentially serious consequences.”
Id. (quoting Tierney, 133 F.3d at 196-97) (quotation marks and citations omitted). “The officer’s
subjective motivation is irrelevant.” Brigham City v. Stuart, 547 U.S. 398, 404 (2006).
The Court notes that the “police bear a heavy burden when attempting to demonstrate an
urgent need that might justify warrantless searches.” King, 563 U.S. at 460 (quoting Welsh v.
Wisconsin, 466 U.S. 740, 749-750 (1984)). The police “do not need ironclad proof of a serious,
life-threatening injury to invoke the emergency aid exception,” Michigan v. Fisher, 558 U.S. 45,

4

The Second Circuit provides six additional factors to determine whether an officer’s warrantless entry into a home
is justified. See Montanez, 444 F. App’x at 486 (quoting United States v. Fields, 113 F.3d 313, 323 (2d Cir. 1997)).
Upon review of these factors, however, the Court finds that they are not relevant to this case. For example, they ask
the Court to weigh the “gravity or violent nature of the offense with which the suspect is charged[,]” whether the
suspect is armed, and “[the] likelihood that the suspect will escape if not swiftly apprehended.” Here, according to
the allegations in the Complaint, Pennington was not suspected of committing a crime, possessing weapons, or
considered likely to flee. Paul and Wilczak were merely performing a welfare check. Consequently, the Court
evaluates only the reasonableness of Wilczak’s belief that Pennington was in distress and in need of assistance.

7

49 (2009), but their objectively reasonable belief must be based on more than speculation, see
United States v. Simmons, 661 F.3d 151, 158-59 (2d Cir. 2011).
Here, Wilczak’s warrantless entry into Pennington’s home was unlawful. Before entering
Pennington’s home, the following circumstances confronted Wilczak: he performed a welfare
check on Pennington for an unknown reason; 5 he arrived at her home around 11:18 p.m.; and he
knocked on Pennington’s door and called her name through the windows of her home and received
no response.
These circumstances do not justify a warrantless entry into Pennington’s home. Other
Courts have required more indicia of distress when confirming that a warrantless entry into a home
was justifiable under the emergency aid exception. See, e.g., Fisher, 558 U.S. at 45-46 (complaint
of a disturbance near the home, report that a man was “going crazy,” three broken windows,
individual inside the home screaming and throwing things); Brigham City, 547 U.S. at 400-01
(report of a loud party, shouting inside the house, four adults restraining a juvenile inside the home,
juvenile striking an adult in the face); Tierney, 133 F.3d at 197 (officer responding to “bad”
domestic disturbance, reporting that shouting ended before he arrived, window of home broken);
Mayes v. Village of Hoosick Falls, 162 F. Supp. 3d 67, 83 (N.D.N.Y. 2016) (911 call from home,
no one on the call, line remained open, operator heard two male voices and sounds that indicated
they were trying to enter a locked building); Chamberlain v. City of White Plains, 986 F. Supp. 2d
363, 381-82 (S.D.N.Y. 2013) (Life Aid received an alert from plaintiff’s Life Aid device, operators
unable to get a response from plaintiff, several reports of an “emotionally disturbed person” had
been made regarding plaintiff in the past).
Of the cases the Court reviewed, the companion cases City & County of San Francisco v.
Sheehan, from the Supreme Court, and Sheehan v. City & County of San Francisco, from the Court
5

The Court does not know why Paul and Wilczak performed a welfare check because neither Pennington nor
Defendants submitted a police report explaining the encounter between Pennington, Paul, and Wilczak.

8

of Appeals for the Ninth Circuit, provide the closest factual comparison to the case at hand. Teresa
Sheehan, the Respondent and Appellant in the Supreme Court and Ninth Circuit cases,
respectively, suffered from a mental illness and lived in a group home in San Francisco. Sheehan
v. City & Cty. of San Francisco, 743 F.3d 1211, 1215 (9th Cir. 2014). Her social worker became
concerned about her mental health and requested that the police help escort Sheehan to a mental
health facility. Id. The social worker noted that Sheehan was not taking her medication and was
a danger to others because Sheehan threatened him when he tried to perform a welfare check on
her. Id. Two San Francisco police officers responded to Sheehan’s residence and entered her
room without a warrant. Id. The Ninth Circuit held that the officers’ entry was constitutional,
noting that
[o]fficers conducting a welfare search, where the objective is rescue, are expected
to err on the side of caution, and under the circumstances of this case the officers
reasonably could have believed that Sheehan’s situation presented a genuine
emergency and that entering as they did was a reasonable means of providing her
with assistance.
Id. The Supreme Court agreed. City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 177576 (2015). It noted that the officers knew Sheehan had a weapon, had threatened to use it to kill
three people, and that delay may endanger the lives of others. Id. Finally, the Supreme Court
explained that “[t]he Constitution is not blind to the fact that police officers are often forced to
make split-second judgments.” Id. (quoting Plumhoff v. Rickard, 124 S. Ct. 2012, 2020 (2014))
(quotation marks omitted).
The circumstances confronting Wilczak are not comparable. Based on the allegations in
the Complaint, Wilczak had insufficient information to reasonably believe that Pennington or
another individual in Pennington’s home were in distress. The Court is sensitive to the fact that
police officers must err on the side of caution and make difficult judgments quickly. The facts
currently before the Court, however, are insufficient to support the conclusion that Wilczak
9

reasonably believed Pennington was in distress and needed emergency assistance. Because
Wilczak’s warrantless entry was not justified under the emergency aid exception, the Court now
evaluates whether he is entitled to qualified immunity.
2.

Qualified Immunity

Qualified immunity shields federal and state officials from unnecessary trial proceedings
unless “(1) [] the official violated a statutory or constitutional right, and (2) [] the right was clearly
established at the time of the challenged conduct.” Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir.
2012). District courts may choose to evaluate either prong first. Id.
Because the Court concluded that Wilczak violated Pennington’s Fourth Amendment
rights, the Court weighs the second prong: whether Pennington’s Fourth Amendment right was
clearly established when Wilczak entered her home. 6
Under the second prong, a “government official’s conduct violates clearly established law
when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.” Coollick, 699
F.3d at 220 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (alteration omitted). “There
is no need for a case on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (quoting al-Kidd, 563 U.S. at 741) (quotation marks
omitted). As the Second Circuit has emphasized,
[the] inquiry is not whether the officer should have acted as he did. Nor is it whether
a singular, hypothetical entity exemplifying the “reasonable officer”—a creature
akin to the “reasonable man” of the law of torts—would have acted in the same
way. It is instead whether any reasonable officer, out of the wide range of
reasonable people who enforce the laws in this country, could have determined that
the challenged action was lawful.

6

The Court notes that the “Supreme Court has expressly encouraged the use of summary judgment when qualified
immunity is raised as a defense.” Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir. 1992). Raising the qualified immunity
defense at summary judgment allows the Court to evaluate an officer’s actions after discovery and when it is more
likely that the facts regarding the officer’s actions are undisputed.

10

Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (citation omitted and emphasis in original).
Similar to the Court’s analysis of the emergency aid exception, the Court uses an objective standard
to evaluate whether a reasonable officer could have determined the action was lawful—his
subjective motivation is irrelevant. See Coollick, 699 F.3d at 220.
Here, no reasonable officer could have determined that Wilczak’s warrantless entry into
Pennington’s home was reasonable. As the Court has explained, it is well established that the
Fourth Amendment jealousy guards against warrantless entry into the home. See Montanez, 444
F. App’x at 486. Few exigencies exist that allow police officers warrantless entry into the home,
and the only one that is applicable—the emergency aid doctrine—is clearly defined. See id. No
reasonable officer, confronted with the same circumstances as Wilczak, would conclude that
Pennington was in distress and needed emergency aid based on the abundance of precedent
outlining the exception from the Supreme Court and the Second Circuit. Consequently, Wilczak
is not entitled to qualified immunity and Pennington’s Section 1983 cause of action against him
remains. The Court next reviews Pennington’s causes of action against the County.
B.

The County

Pennington alleges three causes of action against the County, 7 all under Section 1983: the
County “failed to properly train and supervise” Wilczak, constituting “deliberate indifference;”
the County “ratified” Wilczak’s misconduct; and the County had a “policy, practice, or custom
[that] encouraged” Wilczak’s misconduct. See 13-CV-6480, ECF No. 1 ¶¶ 58, 61, 65. The County
argues that the Complaint fails to state a claim for which relief can be granted on all three causes
of action.

7

The County argues that it is not liable under the theory of respondeat superior for Plaintiff’s three causes of action
against Wilczak: IIED, NIED, and Section 1983. See ECF No. 42-2 at 4-5. Regardless of whether or not that is a
correct statement of the law, Pennington does not allege that the County is liable for the causes of action against
Wilczak. See ECF No. 1. In other words, her causes of action against Wilczak are directed at Wilczak only, and her
causes of action against the County are directed at the County only. As a result, the Court does not address whether
the causes of action against Wilczak apply to the County.

11

In the landmark case Monell v. Department of Social Services, the Supreme Court decided
that municipalities may be held liable for their employees’ constitutional violations under Section
1983 “where the municipality allegedly implemented an unconstitutional custom or policy.”
Montero v. City of Yonkers, 890 F.3d 386, 403 (2d Cir. 2018) (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690-91, 694-95 (1978)). Importantly, Monell does not conclude that plaintiffs may
hold municipalities liable under separate causes of action—there must be an underlying
constitutional violation that occurred because of the municipality’s unconstitutional custom or
policy. See Gem Fin. Serv., Inc. v. City of New York, 298 F. Supp. 3d 464, 490 (E.D.N.Y. 2018)
(citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)). In other words, plaintiffs can
hold a municipal actor and the municipality liable under the same cause of action: the actor for the
constitutional violation, and the municipality for the unconstitutional custom or policy that led to
the actor’s violation. See id.
Consequently, Pennington has improperly labeled her “causes of action” against the
County. They are not separate causes of action against the County; they are theories under which
the County may be held liable based on Wilczak’s constitutional violation.
To plausibly allege a Monell theory under which a municipality may be held liable, a
plaintiff must do more than “simpl[y] recit[e] that there was a failure to train municipal
employees,” that there was a custom, policy, or practice that led to the constitutional violation, or
that the municipality ratified an employee’s conduct. See Dwares v. City of New York, 985 F.2d
94, 100 (2d Cir. 1993), overruled on other grounds by Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163 (1993); see also Montero, 890 F.3d at 403-04;
Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012). Notably, isolated, unconstitutional
acts “by non-policymaking municipal employees are generally not sufficient to demonstrate a

12

municipal custom, policy, or usage that would justify municipal liability.” Jones, 691 F.3d at 81
(citing Villante v. Dep’t of Corr., 786 F.2d 516, 519 (2d Cir. 1986)).
Here, Pennington has failed to plausibly allege that the County is liable for Wilczak’s
conduct. First, she has only alleged a single, unconstitutional act by Wilczak—his warrantless
entry into her home. Second, she alleges no facts to underpin the conclusory allegations of Monell
liability. In fact, the “Facts” section of Pennington’s Complaint, 13-CV-6480, ECF No. 1 ¶¶ 1238, does not mention the County, any policymaking County officials, or any acts or omissions that
would constitute a failure to train or supervise, ratification, or a custom, practice, or policy.
Accordingly, the “causes of action” against the County are DISMISSED. The Court turns next to
Pennington’s Motion for Default Judgment and the City’s corresponding Motion to Vacate the
Clerk’s Entry of Default.
II.

Motions for Default Judgment and to Vacate the Clerk’s Entry of Default
A party must follow a specific process to obtain a default judgment. 8 Fed. R. Civ. P. 55;

Gasser v. Infanti Int’l, Inc., No. 03 CV 6413 (ILG), 2008 WL 2876531, at *6 n.6 (E.D.N.Y. July
23, 2008); Brown v. Marshall, No. 08-CV-12F, 2009 WL 1064189, at *1 (W.D.N.Y. Apr. 20,
2009). First, when a party has “failed to plead or otherwise defend” an action against it, the
opposing party must secure an entry of default from the clerk via an affidavit or other showing.
Fed. R. Civ. P. 55(a). Next, if the party seeking a default judgment is a plaintiff whose claim is a
“sum certain” and the defendant is neither a minor nor incompetent, the plaintiff may request the

8

There appears to be confusion among counsel for Pennington and the City regarding the applicable rules at issue. In
her Motion for Default Judgment, Pennington argues that the City had a “reasonable time” to move to vacate the
Clerk’s entry of default under Federal Rule of Civil Procedure 60(c). ECF No. 57-2 ¶ 20. Plaintiff is correct that Rule
60(c) contains that requirement; however, Rule 60(c) establishes time limits for moving to vacate a judgment under
Rule 60(b). The City is not moving to vacate a judgment. It is moving to vacate the Clerk’s entry of default, which
is governed by Rule 55(c). Rule 55(c) contains no time limit for such a motion. Likewise, the City argues that the
Clerk’s entry of default should be vacated under Rule 60(a). ECF No. 58-1 ¶ 9. This is also incorrect, for two reasons.
First, Rule 60(a) allows parties to move to correct a clerical mistake in a judgment, order, or other part of the record.
It does not relate in any way to defaults or default judgments. Second, Rule 60(b), which the Court infers the City
intended to reference instead of Rule 60(a), allows parties to move to vacate a judgment. The Court has not entered a
judgment in this case. The City is moving to vacate the Clerk’s entry of default. Rule 55(c) explains how to do so.

13

clerk to enter a default judgment, and the clerk must oblige. Fed. R. Civ. P. 55(b)(1). “In all other
cases,” the party seeking a default judgment must apply to the court. Fed. R. Civ. P. 55(b)(2).
Default judgments are generally disfavored and are reserved for rare occasions. Enron Oil Corp.
v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993); see also New York v. Green, 420 F.3d 99, 104 (2d
Cir. 2005) (noting that the Second Circuit “has expressed a strong preference for resolving disputes
on the merits” (quotation marks omitted)).
The entry of default by the Clerk is a mandatory pre-condition to seeking a default
judgment from the Court. See, e.g., Perkins v. Napoli, No. 08-CV-6248 CJS, 2010 WL 455475 at
*1 (W.D.N.Y. Feb. 4, 2010). After the Clerk enters default against a defendant under Rule 55(a),
however, the Court may set it aside for good cause. Fed. R. Civ. P. 55(c).
Good cause is determined via three criteria: “(1) the willfulness of default, (2) the existence
of any meritorious defenses, and (3) prejudice to the non-defaulting party.” Guggenheim Capital,
LLC v. Birnbaum, 722 F.3d 444, 454 (2d Cir. 2013). The Court weighs each of these three criteria
below.
A.

Willfulness

A default is “willful” when it is deliberate and not brought on by outside factors.
Bricklayers & Allied Craftworkers Local 2, Albany Pension Fund v. Moulton Masonry & Constr.,
LLC, 779 F.3d 182, 188 (2d Cir. 2015); see also Guggenheim Capital, LLC, 722 F.3d at 455. The
Second Circuit has construed “willfulness” to be more than negligence, such as egregious or
deliberate conduct. Green, 420 F.3d at 108.
Here, the Court finds that the City’s default was more than negligent, but less than
egregious or deliberate. In its Motion to Vacate, the City contends that it timely answered
Pennington’s Complaint because Pennington’s previous attorney granted the City an extension of
time to respond to the Complaint. See ECF No. 58-1 ¶¶ 4-7; see also ECF No. 58-3. This is
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incorrect. The Court set the deadline to respond to the Complaint as July 22, 2013. ECF No. 3.
Any extension of time to respond is granted not by Plaintiff’s counsel, but by the Court. See Fed.
R. Civ. P. 6(b).
Nevertheless, it does not appear to the Court that the City delayed their Answer for delay’s
sake. Indeed, the fact that the City filed an Answer at all shows that their default was not willful.
B.

Meritorious Defense

A defense is meritorious if it is “more than conclusory.” Green, 420 F.3d at 110. Whether
a defense is meritorious “is measured not by whether there is a likelihood that it will carry the day,
but whether the evidence submitted, if proven at trial, would constitute a complete defense.”
Johnson v. NYU, 324 F.R.D. 65, 71 (S.D.N.Y. 2018) (quoting Enron Oil Corp., 10 F.3d at 98).
The threshold for this factor is low. See id.
Here, the City has shown that it has a meritorious defense in this case. The City’s answer
contains seven affirmative defenses to counter Plaintiff’s allegations. See ECF No. 5 ¶¶ 6-12. The
City responds to each and every allegation in Plaintiff’s Complaint. See id. The Court does not
decide whether the City’s arguments will result in a finding of liability, but the City has responded
to each cause of action and allegation. Consequently, its defense is “complete” and “meritorious.”
C.

Prejudice

Finally, prejudice exists where delay will “thwart [the non-defaulting party’s] recovery or
remedy[,] . . . result in the loss of evidence, create increased difficulties of discovery, or provide
greater opportunity for fraud and collusion.” Green, 420 F.3d at 110 (quoting Davis v. Musler,
713 F.2d 907, 915 (2d Cir. 1983)).
Here, Pennington has endured no prejudice as a result of the City’s delay in filing its
Answer. The case did not progress in the four months between service of the Complaint and the
City’s Answer. In that time, Pennington took no action to further prosecute the case. Moreover,
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Pennington moved to stay the proceedings in this case nearly two years after she filed her
Complaint, and approximately a year-and-a-half after the City answered. Pennington has alleged
no loss of evidence and no opportunity for fraud or collusion. Finally, there are no increased
difficulties of discovery because discovery is currently stayed and the City participated in
discovery before the stay—it submitted initial disclosures along with the other parties. See ECF
No. 39.
Consequently, the City has shown good cause to vacate the Clerk’s entry of default. As a
result, Pennington no longer has the requisite pre-condition to seek a default judgment—the
Clerk’s entry of default—and her Motion for Default Judgment is DENIED.
CONCLUSION
For the foregoing reasons, the Motion for Judgment on the Pleadings, ECF No. 42, filed
by the County and Wilczak is GRANTED IN PART, Pennington’s Motion for Default Judgment,
ECF No. 57, is DENIED, and the City’s Motion to Vacate the Clerk’s Entry of Default, ECF No.
58, is GRANTED. Per the terms of Judge Feldman’s Order, 9 the parties are directed to contact
him regarding further proceedings and the Clerk of Court is directed to remove the stay associated
with this case.

9

“The parties are directed to contact the undersigned upon resolution of the motions to vacate . . . and for judgment
on the pleadings[.]” ECF No. 55.

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Additionally, the Court notes that the remaining causes of action are as follows: three
causes of action against Paul, three causes of action against the City, and one cause of action under
Section 1983 against Wilczak. Because the County cannot be held liable under Monell, the Clerk
of Court is directed to dismiss the County as a party to this action.
IT IS SO ORDERED.
Dated: June 18, 2018
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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