against Casey pursuant to Fed. R. Civ. P. 55(b)(2).
When an action is brought against several defendants, charging them with joint liability, a question may arise as to the effect of a default by fewer than all defendants. 10 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d, section 2690, p. 455. As a general rule, when one of several defendants who is alleged to be jointly liable defaults, judgment should not be entered against him until the matter has been adjudicated with regard to all defendants. Frow v. De La Vega, 15 Wall. (82 U.S.) 552 (1872). See also, Miele v. Greyling, 1995 WL 217554, 2 (S.D.N.Y. 1995). However, the Second Circuit has held it is "most unlikely that Frow retains any force subsequent to the adoption of Rule 54(b). International Controls Corp. v. Vesco, 535 F.2d 742, 746 n. 4 (2d Cir. 1976). In any event, at most, Frow controls situations where the liability of one defendant necessarily depends upon the liability of the others. Id. at 746, quoting Redding & Co. v. Russwine Construction Corp., 150 U.S. App. D.C. 93, 463 F.2d 929, 932-33 (1972). See also, In Re Vantage Petroleum Corp., 43 Bankr. 257, 259-60 (Bkrtcy. 1984). In light of these decisions, the holding in Frow has been narrowly construed to prohibit entry of default judgment against one of several defendants (1) where the theory of recovery is one of true joint liability, such that as a matter of law, no one defendant may be liable unless all defendants are liable, or (2) where the nature of the relief demanded is such that, in order to be effective, it must be granted against every defendant. 6 J. Moore, et al., Moore's Federal Practice, section 55.06 at 55-49 (2d ed. 1995); Miele, 1995 WL 217554 at 2; Friedman v. Lawerence, 1991 WL 206308, 2 (S.D.N.Y. 1991). Since the defendants are jointly liable in the instant action, the Frow analysis governs.
While the court may be inclined to enter default judgment against defendant Casey for his failure to respond, the specter of inconsistent adjudications between defendant Casey and defendant Coughlin, who has responded in a professional and timely manner, precludes entry of default judgment at this time. Furthermore, plaintiffs have made no showing of prejudice flowing from defendant Casey's default and the court perceives none at this time. From the record and the factual issues contained therein, the court is persuaded that the defendants have an at least meritorious defense to the plaintiff's complaint. Taken together, the foregoing analysis of the above factors leads the court to conclude that the entry of default should be held in abeyance pending disposition of the action as to defendant Coughlin.
C. Motion to Dismiss
In ruling on a motion to dismiss for failure to state a claim under Fed. R. civ. P. 12(b)(6), the court must liberally construe all reasonable inferences in the complaint in the light most favorable to the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, U.S. , 113 S. Ct. 1160, 1161 (1993); Hill v. City of New York, 45 F.3d 653, 657 (2d Cir. 1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1993). Although a court considering a motion to dismiss for failure to state a claim is limited to the facts stated in the complaint, the complaint includes any written instrument attached to it as an exhibit and any statements or documents incorporated into it by reference. Allen v. Westpoint-Pepperell Inc., 945 F.2d 40, 44 (2d Cir. 1991). As such, a district court's review of a motion to dismiss is conducted de novo. Paulemon v. Tobin, 30 F.3d 307 (2d Cir. 1994), (quoting First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 765 (2d Cir. 1994)).
In reviewing the motion to dismiss, the court should deny the motion [to dismiss] unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief. IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quoting Ryder Energy Distr. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). See also, Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (a complaint may be dismissed only if "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief).
As in the instant action, where civil rights violations are at issue and the plaintiff is pro se, the court must be vigilant in applying the standard. Hernandez, 18 F.3d at 136; accord, Branum, 927 F.2d at 705 (2d Cir. 1991) (Rule 12(b)(6) standards "applied with particular strictness" in civil rights actions). See also, Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991) (amended complaint may not be dismissed if plaintiff can prove any set of facts that would entitle her to relief).
Viewing the record as a whole, the court concurs with the magistrate judge that defendant Coughlin's motion to dismiss be denied. The magistrate judge's reasoning detailing his conclusion is well supported in the record. (Report & Rec., pages 5-8). Since the motion to dismiss under Rule 12(b)(6) is as dispositive as a motion for summary judgement under Rule 56, and since this pro se plaintiff has alleged violations of his civil rights, the Court must exercise caution in rendering a decision on this motion in the early stages of this litigation. Because the Court cannot say that there is no set of facts which plaintiff could prove that would entitle him to relief, defendant Coughlin's motion cannot be granted at this time.
In light of the foregoing reasons, then, plaintiffs' motion for a Temporary Restraining Order is DENIED. Likewise, defendant Coughlin's motion to dismiss the complaint under Rule 12(b)(6) is DENIED and his motion for a protective order is DENIED. Plaintiffs' motion to compel the production of documents is GRANTED. Finally, plaintiff's motion for default judgment is HEREBY ORDERED in abeyance pending disposition of the complaint.
IT IS SO ORDERED.
Dated: Binghamton, New York
August 3, 1995
THOMAS J. McAVOY
Chief U.S. District Court Judge