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HIRSCHFELD v. COMMISSIONER OF THE DIVISION OF PAROLE

United States District Court, Southern District of New York


May 8, 2003

ABRAHAM HIRSCHFELD, PETITIONER, AGAINST COMMISSIONER OF THE DIVISION OF PAROLE, STATE OF NEW YORK RESPONDENT

The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge

REPORT AND RECOMMENDATION

To the HONORABLE KIMBA M. WOOD, U.S.D.J.:

I. INTRODUCTION

On April 2, 2003, pro se habeas corpus petitioner Abraham Hirschfeld ("Hirschfeld") moved for a default judgment against respondent for failure to file an answer. For the reasons following, I respectfully recommend that the motion be DENIED.

II. BACKGROUND

On January 6, 2003, Hirschfeld filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, and on January 17, 2003, the case was referred to the undersigned. On January 30, 2003, this Court ordered that the Clerk of the Court serve copies of the petition on the respondent, and that respondent answer by March 28, 2003. On April 2, 2003, Hirschfeld moved for a default judgment against respondent for failure to answer the petition pursuant to the Court's order. By letter dated April 8, 2003, the office of the Attorney General of the State of New York notified the Court that it had never been served with the petition, and that the docket sheet did not indicate that service was ever effectuated. The Court again issued an order on April 11, 2003, directing that respondent be served and file an answer by June 12, 2003.

III. DISCUSSION

Pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure, a court may enter a judgment of default upon the application of the party entitled to the judgment. In making such a determination, the court may consider numerous factors, including "whether plaintiff has been substantially prejudiced by the delay involved[] and whether the grounds for default are clearly established or in doubt . . . [or if delay was] caused by a good-faith mistake[] or by excusable or inexcusable neglect." 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure, § 2685 at 32 (1998). A court may also consider willfulness and whether the defendant demonstrates that a meritorious defense exists. Gonzalez v. City of New York, 104 F. Supp.2d 193, 195 (S.D.N.Y. 2000).

A review of the record indicates that the grounds for default are clearly "in doubt," in light of the fact that respondent was not timely served with the petition and did not receive the Court's January 30, 2003 order. Hirschfeld made no attempts to ensure that respondent was served with the petition before bringing his motion. Respondent's delay is therefore excusable, since it had no knowledge of the petition until Hirschfeld filed his notice of motion for a default judgment. Once the Court became aware that service of the petition and order was not effectuated, a second order was issued, extending respondent's time to answer. The record indicates that respondent was in fact served with the petition subsequent to that order. Since being served, respondent has appeared in this case to defend a discovery motion brought by Hirschfeld, and has maintained communication with the Court. Respondent's answer to the petition is not due until June 12, 2003. Accordingly, it would be inappropriate to grant Hirschfeld' s motion for a default judgment.

IV. CONCLUSION

Accordingly, I respectfully recommend that petitioner's motion be DENIED.

Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636 (b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).

20030508

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