Jordan v. Ellsworth et al
Filing
27
DECISION AND ORDER: For the reasons stated, Defendants' Motion to Set Aside Default, ECF No. 24 , is GRANTED. The Court will refer this case to a magistrate judge for further pretrial proceedings by separate order. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 10/22/18. (JO)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICTORIA L. JORDAN,
Plaintiff,
Case # 16-CV-6384-FPG
v.
DECISION AND ORDER
LISA ELLSWORTH and
NEW YORK STATE INSURANCE FUND,
Defendants.
INTRODUCTION
On June 8, 2016, Plaintiff Victoria L. Jordan filed a complaint alleging claims stemming
from Defendant Lisa Ellsworth’s repeated refusal to promote Jordan based on her race and despite
her significant experience while both were employed at Defendant New York State Insurance
Fund. See ECF No. 1. Jordan amended her Complaint twice: once on September 26, 2016, and
again on December 18, 2017. ECF Nos. 6, 19. In the latter instance, Defendants failed to timely
answer. See ECF Nos. 21, 23-24; see also Fed. R. Civ. P. 15(a). On May 23, 2018, over five
months after Jordan filed her Second Amended Complaint, she requested the Clerk to enter default;
the Clerk obliged the next day. ECF Nos. 21, 23. The same day—May 24, 2018—Defendants
answered Jordan’s Second Amended Complaint. Nearly two weeks later, on June 6, 2018,
Defendants moved to set the entry of default aside. ECF No. 24. Jordan does not oppose the
Motion. 1 ECF No. 26.
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The Court is required to evaluate Defendants’ Motion even though Jordan does not oppose it. See, e.g., Yadav v.
Brookhaven Nat’l Lab., No. CV-09-5645(SJF)(ARL), 2010 WL 2606620, at *1-2 (E.D.N.Y. June 21, 2010).
DISCUSSION
When a defendant has “failed to plead or otherwise defend” an action against the plaintiff,
she may secure an entry of default from the clerk via an affidavit or other showing. Fed. R. Civ.
P. 55(a). The clerk’s entry of default 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).
The Court considers three factors to determine whether to set aside an entry of default for
good cause: “(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). Based on its review of these factors, the Court finds good cause here.
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. New York v. Green, 420 F.3d 99, 108 (2d Cir. 2005).
Here, Defendants’ default was negligent at most and, therefore, not egregious or deliberate.
As defense counsel noted, until their recent default, Defendants have actively litigated the case.
See ECF No. 11 (Defendants’ Motion to Dismiss the Amended Complaint). Moreover, the
oversight was brought on not deliberately, but accidentally and as a result of a death in defense
counsel’s family and his substantial workload. ECF No. 24-2 ¶¶ 3-4. Consequently, this factor
favors Defendants.
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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. v. Diakuhara, 10
F.3d 90, 98 (2d Cir. 1993)). The threshold for this factor is low. See id.
Here, Defendants have a meritorious defense. Attached to defense counsel’s affidavit is a
“Position Statement,” a document drafted by an individual in NYSIF’s Legal Administration
department, which explains the circumstances surrounding Jordan’s employment and provides
purportedly-legitimate, non-discriminatory reasons for declining to promote Jordan. ECF No. 242 at 5-13. If those arguments are proven at trial, it would constitute a complete defense to Jordan’s
claims. Accordingly, this factor favors Defendants.
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, while the Court acknowledges that Defendants’ actions have caused delay, there is
no prejudice to Jordan. She has alleged no prevention of recovery or remedy, no loss of evidence,
no increased difficulties of discovery, and no opportunity for fraud or collusion as a result of
Defendants’ default. Indeed, Jordan does not oppose Defendants’ Motion to set aside the entry of
default. ECF No. 26. This factor, and, thus, all three factors, weigh in Defendants’ favor and their
Motion is GRANTED.
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CONCLUSION
For the foregoing reasons, Defendants’ Motion to Set Aside Default, ECF No. 24, is
GRANTED. The Court will refer this case to a magistrate judge for further pretrial proceedings
by separate order.
IT IS SO ORDERED.
Dated: October 22, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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