WILLIAMS v. ADVANCED URGENT CARE
MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION TO VACATE DEFAULT OF 3/2/16 AS WELL AS FINAL AMENDED DEFAULT JUDGMENT OF 9/2/16 PURSUANT TO RULE 60 (b)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE IS DENIED; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 2/9/17. 2/9/17 ENTERED AND E-MAILED, MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ADVANCED URGENT CARE,
February 9, 2017
This is an employment discrimination case. Plaintiff Nafisah Williams alleged in her
Complaint that her former employer, defendant Advanced Urgent Care, violated 42 U.S.C.
§ 1981 and Pennsylvania state law when it discriminated against her based on her race and
retaliated against her for her opposition to the discrimination. Pursuant to the Order dated
February 29, 2016, the Clerk of Court entered a default against defendant for failure to retain
counsel. By Memorandum and Order dated August 25, 2016, the Court entered judgment in
favor of plaintiff and against defendant in the amount of $107,904 in back pay, compensatory
damages, and punitive damages.
Presently before the Court is defendant’s Motion to Vacate Default of March 2, 2016 As
Well As Final Amended Default Judgment of September 2, 2016 Pursuant to Rule 60(b)(1) of
the Federal Rules of Civil Procedure (Document No. 54, filed Dec. 28, 2016) (“Motion to
Vacate”). For the reasons that follow, the Court denies defendant’s Motion.
On November 5, 2014, plaintiff filed a Complaint asserting claims under 42 U.S.C.
§ 1981 and Pennsylvania state law against her former employer, defendant Advanced Urgent
Care. The Complaint alleged that defendant’s owner, Dr. Mehdi Nikparvar, 1 used race-based
policies for triaging patients and racial slurs in communicating with staff members, and that
plaintiff suffered discrimination and harassment based on her race and was terminated for
opposing Dr. Nikparvar’s practices and discriminatory conduct. Compl. ¶¶ 1, 52, 58, 65, 69.
Defendant was initially represented by Arsen Kashkashian, Esq., and filed an Answer on
December 31, 2014 (Document No. 4). Mr. Kashkashian moved to withdraw as counsel on
September 9, 2015, citing Dr. Nikparvar’s “fail[ure] to cooperate in the discovery process” and
defendant’s discharge of Mr. Kaskkashian as counsel. Mot. of Counsel for Def. (Document No.
17); Mem. Supp. Mot. of Counsel for Def. ¶¶ 7-13. The Court held a hearing on the Motion on
November 13, 2015, which Dr. Nikparvar attended. At the hearing, the Court informed Dr.
The Motion for Leave to Withdraw sets forth valid grounds for withdrawing as
counsel. So absent a change of position, and it would have to be the doctor’s
[Nikparvar’s] change of position, that Motion will be granted. That leaves
Advanced Urgent Care without an attorney. As a corporation, it cannot be
represented by someone who is not an attorney, so the doctor will have to retain
Nov. 13, 2015, Hr’g Tr., at 4:19–25. The Court further stated that:
I’m going to grant Mr. Kashkashian’s Motion for Leave to Withdraw and give
you 30 days to retain counsel and provide that the attorney must enter his
appearance within the 30-day period. And if you need more time, you’ll write to
me. You can’t just ignore this.
Nov. 13, 2015, Hr’g Tr., at 8:11–16. The Court granted Mr. Kashkashian’s Motion to withdraw
by Order dated November 13, 2015. That Order required defendant to obtain new counsel within
thirty days and provided that defendant could request an extension of time by writing to the
Dr. Nikparvar is not a party to this case in his individual capacity.
In a letter to the Court dated December 10, 2015 (Document No. 26), Dr. Nikparvar
stated that he had been in contact with an attorney, William Weiss, and requested a 30-45 day
extension of the time by which to obtain new counsel. By Order dated December 11, 2015, the
Court granted Dr. Nikparvar’s request and provided a 45 day extension.
By Order dated February 3, 2016, with no appearance entered on behalf of defendant or
further communication from any representative of defendant, the Court sua sponte extended the
deadline to obtain new counsel and for new counsel to enter an appearance to February 23, 2016.
In that Order, the Court noted for the record that “a corporation such as Advanced Urgent Care
may not be represented [by] a lay person in federal court and is required to obtain counsel to
defend a case.” That Order provided that
Failure of defendant to comply with this Order will result in the entry of a default
against defendant, Advanced Urgent Care, for failure to obtain counsel. The entry
of the default . . . will be followed by the filing of a motion for entry of default
judgment which will require the Court to schedule a hearing for the purpose of
assessing damages. At any such hearing the issue for the Court will be the
amount of damages, not whether the defendant is liable to plaintiff. Once default
is entered liability is deemed established.
Copies of that Order were served on defendant and Dr. Nikparvar.
By Order dated February 29, 2016, again with no appearance entered on behalf of
defendant or communication from Dr. Nikparvar or any other representative of the defendant, the
Court ordered the Clerk of Court to enter a default against defendant for failure to retain counsel.
This was done, and copies of that Order were served on defendant and Dr. Nikparvar.
On March 30, plaintiff filed a Motion for Default Judgment (Document No. 29).
In a letter to the Court dated April 4, 2016 (Document No. 31), William J. Weiss, Esq., stated
that an employee of defendant asked Mr. Weiss to represent defendant in this case. Mr. Weiss
requested an extension of time to file an answer to the Complaint. Mr. Weiss did not enter an
appearance on behalf of defendant. In a letter to Mr. Weiss dated April 5, 2016 (Document No.
32), the Court denied Mr. Weiss’s request for an extension of time and informed Mr. Weiss that
he “must proceed in accordance with the Federal Rules of Civil Procedure or by agreement of
counsel.” This Order also informed Mr. Weiss that the default had been entered by Order dated
March 2, 2016, and that a Motion for Default Judgment had been filed.
On April 8, 2016, Donald Moser, Esq., entered an appearance on behalf of defendant. By
Order dated May 4, 2016, the Court extended the deadline for defendant to respond to the
Motion for Default Judgment. By Order dated June 16, 2016, the Court again extended the
deadline for defendant to respond to the Motion for Default Judgment because the United States
Postal Service could not confirm that the Order dated May 4, 2016, had been served on
defendant and Dr. Nikparvar. The Order dated June 16, 2016, advised that
In the event defendant fails to comply with this Order, defendant will be
precluded from responding to the Motion for Default Judgment at a later date or
seeking at a later date to vacate the default against defendant entered by Order
dated February 29, 2016.
Copies of this Order, the Order dated May 4, 2016, and the letters between Mr. Weiss and the
Court from early April were served on defendant, Dr. Nikparvar, Mr. Weiss, and Mr. Moser.
Defendant did not file a response to the Motion for Default Judgment.
By Order dated July 28, 2016, the Court granted plaintiff’s Motion for Default Judgment
and scheduled a damages hearing for August 9, 2016. That Order directed all counsel and a
representative of defendant to appear at the hearing and was served on defendant, Dr. Nikparvar,
and all counsel.
On August 9, 2016, the Court held the damages hearing. Neither Dr. Nikparvar nor any
other representative of defendant appeared at the hearing. Mr. Weiss and Mr. Moser both
appeared. Mr. Weiss informed the Court that he was unable to enter an appearance in this matter
because he had not been reinstated to the federal bar. Aug. 9, 2016, Hr’g Tr., at 3:20–23; 4:205:4. Mr. Moser informed the Court that he had entered his appearance in order to “pinch hit” for
Mr. Weiss, with the hope that “by the time th[e] case came up, [Mr. Weiss] could have a hearing
before fellow members of the bench and be readmitted.” Aug. 9, 2016, Hr’g Tr. at 3:23-4:1. Mr.
Moser informed the Court that he had no contact with defendant, Dr. Nikparvar had not
responded to letters asking him to contact Mr. Moser and Mr. Weiss, and defendant had not paid
any legal fees to Mr Weiss or Mr. Moser. Aug. 9, 2016, Hr’g Tr. at 4:3-11. Mr. Moser also
advised the Court that he wanted to withdraw his appearance. Aug. 9, 2016, Hr’g Tr. 5:9-22,
6:23-7:3. In response, the Court directed him to file a motion for leave to withdraw and serve
that motion on defendant. Aug. 9, 2016, Hr’g Tr. at 7:5–14. Mr. Moser never filed a motion for
leave to withdraw.
After the damages hearing, plaintiff submitted Proposed Findings of Fact and
Conclusions of Law, and plaintiff’s counsel submitted a Petition for Attorneys’ Fees (Documents
42 and 43, filed Aug. 22, 2016). By Memorandum and Order dated August 25, 2016, the Court
entered judgment in favor of plaintiff in the total amount of $107,904, comprised of back pay in
the amount of $7,904, compensatory damages in the amount of $50,000, and punitive damages in
the amount of $50,000. 2 The Court also granted plaintiff’s counsel’s Petition and awarded
plaintiff’s counsel attorneys’ fees in the amount of $18,550.
On December 28, 2016, defendant filed the pending Motion to Vacate, seeking relief
under Federal Rule of Civil Procedure 60(b)(1). In its Motion, defendant argues that the entry of
default and default judgment should be vacated because Dr. Nikparvar paid Mr. Weiss $2,000 in
late January 2016, and thus Mr. Weiss erred in not entering his appearance by the Court’s
By Order dated September 1, 2016, the Court vacated its August 25, 2016, Order to correctly
name defendant. The amount of the judgment remained the same.
deadline of February 23, 2016. Mot. to Vacate ¶ 2; Ex. B. Plaintiff filed her Response on
January 19, 2017. Plff. Mem. (Document No. 58). 3 The Motion is thus ripe for review.
Under Federal Rule of Civil Procedure 55(c), “[t]he court may set aside a final default
judgment under Rule 60(b).” Federal Rule of Civil Procedure 60(b) permits vacatur of final
judgment in cases of, inter alia, “mistake, inadvertence, surprise or excusable neglect.” To
determine whether a default judgment should be set aside, the Court must consider four factors:
“(1) whether lifting the default would prejudice the plaintiff; (2) whether the defendant has a
prima facie meritorious defense; (3) whether the defaulting defendant’s conduct is excusable or
culpable; and (4) the effectiveness of alternative sanctions.” Emcasco Ins. Co. v. Sambrick, 834
F.2d 71, 73 (3d Cir. 1987). While the United States Court of Appeals for the Third Circuit
generally favors judgment on the merits, “the decision to vacate a default judgment is left to the
sound discretion of the trial court.” Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 982 (3d Cir.
In its Motion, defendant argues that vacatur is proper under Rule 60(b)(1) because the
default and default judgment were the result of Mr. Weiss’s “honest error.” Mot. to Vacate ¶ 20.
Defendant also argues that Dr. Nikparvar acted with “[d]ue [d]iligence” in obtaining counsel,
and that the entry of default and default judgment were “faulty . . . since [the Court] did not
know of Dr. Nik’s successful efforts in hiring new counsel before the Court’s final deadline of
February 23, 2016.” Mot. to Vacate ¶¶ 18, 23; Mem. Supp. Mot. to Vacate 2. Plaintiff responds
By Order dated December 29, 2016, the Court ordered plaintiff to respond by January 19, 2017.
that vacatur is improper because none of the Emcasco factors favor vacating the default
judgment. The Court will address each of the Emcasco factors in turn.
A plaintiff will suffer prejudice from setting aside a default judgment where “loss of
available evidence, increased potential for fraud or collusion, or substantial reliance upon the
judgment” has occurred. Feliciano v. Reliant Tooling Co., 691 F.2d 653, 657 (3d Cir. 1982).
“Delay in realizing satisfaction on a claim rarely serves to establish the degree of prejudice
sufficient to prevent the opening [of] a default judgment entered at an early stage of the
proceeding.” Id. at 656-57.
Defendant offers no argument with respect to this factor. Plaintiff argues that she would
suffer prejudice because, since the entry of default on March 2, 2016, the parties and witnesses
have not “had any reason to preserve any of the records or other evidence of Plaintiff’s
employment with Defendant” and “memories fade.” Plff. Mem. 13. Plaintiff also argues that
defendant’s prior refusal to participate in the discovery process has resulted in witnesses
“forget[ting] critical facts.” Plff. Mem. 13 (citing Mem. Supp. Mot. of Counsel for Def. ¶ 7).
While the passage of time may result in the loss of some evidence, plaintiff provides no
evidence and the record does not support finding that any such loss has occurred. Thus, the
Court concludes that this factor weighs in favor of vacating the default judgment.
B. Meritorious Defense
“A meritorious defense . . . is a defense which, if established at trial, would completely
bar plaintiffs’ recovery.” Foy v. Dicks, 146 F.R.D. 113, 116 (E.D. Pa. Feb. 3, 1993) (citation and
quotation marks omitted). To proffer a meritorious defense, a party seeking to set aside default
judgment must do more than offer “simple denials or conclusionary statements.” United States
v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984). Rather, the defaulting party
must allege facts that, “if established at trial, would constitute a complete defense.” Id.
Defendant makes no argument with respect to this factor in its Motion. Plaintiff argues
that defendant’s Answer lacks any factual allegations that could constitute a meritorious defense.
Plff. Mem. 8. The Answer consists primarily of denials of the facts alleged in the Complaint
and, by affirmative defenses, failure to state a claim, with one relevant exception—the defendant
alleges that plaintiff “was not terminated” or fired but that she “failed to return to work.”
Answer ¶¶ 50, 55, 58, 66.
To determine whether these allegations, if proven at trial, would completely bar recovery,
the Court examines the claims made in the Complaint. The Complaint alleged four counts: (1)
racial discrimination and hostile work environment under 42 U.S.C. § 1981; (2) retaliation under
42 U.S.C. § 1981; (3) wrongful termination under the Pennsylvania Whistleblower Act, and (4)
wrongful termination under Pennsylvania common law. To establish a prima facie case of
employment discrimination for retaliation under 42 U.S.C. § 1981 for retaliation, the plaintiff
must prove that he or she was subject to a materially adverse action. Burlington N. & Santa Fe
Ry. v. White, 548 U.S. 53, 64 (2006). Claims that plaintiff was wrongfully terminated under the
Pennsylvania Whistleblower Act and Pennsylvania common law require that the plaintiff prove
she was terminated. A hostile work environment claim under 42 U.S.C. § 1981 may be made
with or without proving an adverse tangible employment action. Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 760, 765 (1998) (recognizing potential employer liability and
corresponding affirmative defense for harassment claim with no tangible employment action).
For each of her four claims, plaintiff alleged that she was fired or terminated by defendant. 4
Compl. ¶¶ 50, 55, 58, 65, 69. Thus, the allegations of the Answer that plaintiff was not
terminated or fired and instead failed to return to work could constitute a complete defense by
negating plaintiff’s prima facie case for at least three of plaintiff’s claims.
The Court notes that the allegations of the Answer lack specificity with respect to the
circumstances of plaintiff’s failure to return to work. However, considering the Third Circuit’s
preference for deciding a case on the merits, the Court reads the Answer liberally. See Feliciano,
691 F.2d at 656 (“Rule 60(b) should be ‘given liberal construction . . . . Any doubt should be
resolved in favor of the petition to set aside the judgment so that cases may be decided on their
merits.”). Thus, although the Court concludes this factor weighs in favor of vacating the default
judgment, it gives this factor limited weight due to the lack of specificity of defendant’s
C. Culpable Conduct
Culpable conduct by the defendant “is the willfulness or bad faith of a non-responding
defendant.” Hritz v. Woma Corp., 732 F.2d 1178, 1182 (3d Cir. 1984) (citation and quotation
marks omitted). Willfulness and bad faith include “knowing disregard for court-mandated
procedures.” Id. at 1183.
Defendant contends that the default resulted from errors made by Mr. Weiss, including
forgetting that Dr. Nikparvar paid him $2,000 and requesting an extension of time to file an
Answer rather than entering an appearance. Mot. to Vacate ¶¶ 20-21. Defendant argues that Dr.
Nikparvar complied with the Orders of the Court to obtain counsel because he requested more
time, informed the Court that “more than likely, he was going to hire Mr. Weiss once financial
While not alleged in the Complaint, actions other than termination or firing may constitute an
adverse tangible employment action. See Pa. State Police v. Suders, 542 U.S. 129, 132 (2004).
arrangements had been agreed upon,” and, in late January 2016, paid Mr. Weiss to represent
defendant. Mot. to Vacate ¶ 18. Plaintiff argues that the default was the result of defendant’s
ongoing culpable conduct in ignoring the Orders of the Court. Plff. Mem. 7.
The Court concludes that the entry of default and default judgment were the result of
culpable, knowing conduct by defendant and its owner, Dr. Nikparvar. Defendant and Dr.
Nikparvar do not contend that it did not receive the Orders of the Court and do not argue that Dr.
Nikparvar was unaware that defendant was unrepresented and required to obtain counsel. Even
if Dr. Nikparvar paid Mr. Weiss before February 23, 2016, the Order required that new counsel
enter an appearance by that date. Defendant and Dr. Nikparvar received notice that no
appearance had been entered by that date, as copies of the Order dated February 3, 2015, were
sent to defendant and Dr. Nikparvar and stated that no appearance had been entered. There is no
evidence that Dr. Nikparvar took any action to address the retaining of counsel to represent
defendant after receiving that notice.
With respect to defendant’s argument that vacatur is warranted due to Mr. Weiss’s
mistake in requesting an extension rather than entering an appearance, Mr. Weiss informed the
Court that he was unable to enter an appearance because he was not readmitted to practice before
this Court. Furthermore, Mr. Weiss’s first communication with the Court was on April 4, 2016.
Even if Mr. Weiss had entered an appearance instead of requesting an extension of time to file an
answer, the deadline by which to obtain representation and for counsel to enter an appearance
had lapsed by over a month at that time.
Defendant continued to ignore the Orders of the Court and notice of the subsequent court
proceedings over a period of seven months, including notice of the entry of default, notice of an
extension of time to respond to plaintiff’s Motion for Default Judgment, notice of the entry of
default judgment, and notice of the damages hearing. Defendant failed to comply with the Order
dated July 28, 2016, to have a representative appear at the damages hearing. Defendant has
provided no explanation for this knowing failure to comply with the Orders of the Court and to
address Mr. Weiss’s failure to enter an appearance until after default judgment had been entered,
despite receiving repeated notices, beginning on February 3, 2016, that no appearance had been
entered on behalf of defendant and that the case was proceeding to entry of default and default
judgment. This conduct does not constitute mistake or inadvertence; it constitutes willfulness
and bad faith. The Court thus concludes that this factor weighs strongly against vacating the
D. Effectiveness of Alternative Sanctions
The Court concludes that alternative sanctions would not be effective in this case. Since
February 3, 2016, defendant has consistently failed to comply with and disregarded the Orders of
the Court. See Hritz, 732 F.2d at 1184 (remanding for articulation of findings of prejudice and
culpable conduct but noting that “we do not believe it is an abuse of discretion for a trial judge to
enter a default judgment to sanction a party who has callously disregarded repeated notices of a
judicial proceeding”). Defendant ignored the Orders of the Court despite being repeatedly
advised of the consequences, including the entry of a default, preclusion from arguing the merits
of the case, default judgment, and monetary damages. The threat of default and monetary
damages were insufficient to motivate defendant to comply with the Orders of the Court. Thus,
the Court concludes that other procedural sanctions or monetary sanctions would be ineffective
in addressing defendant’s conduct in this case.
While the Court concludes that Emcasco’s first two factors, prejudice to plaintiff and a
meritorious defense, weigh slightly in favor of vacating the default judgment, the last two factors
weigh strongly against vacating the default judgment. In particular, the Court gives considerable
weight to the culpable conduct of defendant leading to the default and default judgment and the
ineffectiveness of alternative sanctions in addressing defendant’s conduct. See Scottsdale Ins.
Co. v. Littlepage, Civ. Action No. 92-2734, 1993 WL 275162, at *5-6 (E.D. Pa. July 16, 1993)
(denying motion to vacate default judgment where culpable conduct and ineffectiveness of other
sanctions weighed against vacatur, despite prima facie meritorious defense and lack of
prejudice). Accordingly, the Court declines to set aside the default judgment under Federal
Rules of Civil Procedure 60(b).
For the foregoing reasons, defendant’s Motion to Vacate Default of March 2, 2016 As
Well As Final Amended Default Judgment of September 2, 2016 Pursuant to Rule 60(b)(1) of
the Federal Rules of Civil Procedure is denied. An appropriate order follows.
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