United States District Court, E.D. New York
September 7, 2005.
KENNETH WYNDER, Plaintiff,
JAMES McMAHON, DAVID SPAHL, ROBERT JONES, LOUIS B. BARBARIA, CRAIG MASTERSON, JOSH KEATS, Individually, and John Doe employees one through ten of the New York State Police, Defendants.
The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge
MEMORANDUM AND ORDER
In this action, plaintiff, a former New York State Trooper,
alleges principally that he was discriminated against in
employment on the basis of race in violation of federal and state
law. Pending before the Court are plaintiff's motion for a
default judgment pursuant to Federal Rule of Civil Procedure
55(b) and defendants' motion to dismiss the complaint pursuant to
Plaintiff commenced this action on February 9, 1999. At that
time, the case was assigned to Judge Trager. Defendants moved to
dismiss plaintiff's complaint and Judge Trager granted that
motion on January 24, 2000, permitting plaintiff to amend his
complaint withing 60 days. Plaintiff then filed a First Amended
Complaint ("FAC")*fn1 on March 31, 2000 and, in October
2000, the defendants moved to dismiss that complaint on the same
grounds asserted in their previous motion. In a Memorandum and Order dated December 18,
2000, Judge Trager granted the motion and dismissed the FAC,
granting plaintiff leave to replead. On January 26, 2001,
plaintiff filed a Second Amended Complaint ("SAC"). Having
received permission from Judge Trager, defendants filed another
motion to dismiss the SAC (the same motion submitted previously)
in February 2002. In August 2002, Judge Trager granted that
motion without prejudice pursuant to Federal Rule of Civil
Procedure 41(b)*fn2 based on plaintiff's failure to comply
with the Court's order that he particularize his allegations
against each defendant and clearly state the nature of those
allegations. See Docket Entry No. 64. Judge Trager did not
grant plaintiff leave to replead.
Plaintiff appealed from that order of dismissal. In a decision
filed on March 1, 2004, the Second Circuit considered (1) whether
the district court was correct in requiring that plaintiff's
complaint meet a higher pleading standard than that set forth in
Rule 8(a) on penalty of dismissal and (2) whether plaintiff's SAC
satisfied the requirements of Rule 8(a). See Wynder v.
McMahon, No. 02-9101 ("Wynder I"). The Second Circuit held
that the district court erroneously ordered plaintiff, on penalty
of dismissal pursuant to Rule 41(b), to file a complaint that
exceeded the notice pleading standard of Rule 8(a) and that the
SAC satisfied the requirements of Rule 8. Id. at 10, 12. The
Court concluded that plaintiff "should be permitted to proceed on
his second amended complaint." Id. at 13. The Court also noted,
however, that its holding did not mean "all aspects of the
complaint will ultimately survive dismissal," given the
distinction between the standards for Rule 8(a) and Rule
12(b)(6), and left to the district court's discretion striking
portions of the complaint pursuant to Rule 12(f). Id.
Accordingly, the Second Circuit vacated Judge Trager's decision granting defendants'
motion to dismiss and remanded the case to the district court.
The mandate from the Second Circuit was entered on the docket
on March 25, 2004. See Docket Entry No. 74. The parties met
with Magistrate Judge Cheryl L. Pollak on May 5, 2004. At that
meeting, Judge Pollak ordered plaintiff to file, if he so
desired, a proposed amended complaint by May 24 and defendants to
inform the court whether they would be answering the complaint or
making a motion to dismiss the complaint at a conference to be
held on June 3. Plaintiff then filed a Third Amended Complaint
("TAC") on May 28, 2004 (Docket Entry No. 79), which, following a
conference with Judge Pollak, was deemed filed nunc pro
tunc as of May 25, 2004. At a conference with Judge Pollak on
January 7, 2005, defendants were ordered to serve any motion to
dismiss by February 28.
On March 15, 2005, plaintiff moved for a default judgement
under Rule 55 based on defendants' failure to answer the
complaint. For the fourth time in this litigation, defendants
moved to dismiss plaintiff's complaint. The Court turns to the
parties' arguments regarding those motions.
In moving for a default judgment, plaintiff contends that
defendants' failure to answer the complaint after they were
served with the Second Circuit's decision in Wynder I in March
2004 constitutes a default. See Pl. Mem. at 4 ¶ 6. In
opposition, defendants argue that they have not defaulted because
they moved to dismiss the TAC pursuant to Rule 12(b)(6) in lieu
of filing an answer to that pleading. Although defendants' motion
to dismiss is dated February 28, 2005, they filed and served it
on March 15, 2005. They concede that their motion was untimely according to Judge Pollak's order that such a motion be filed by
February 28, 2005, but claim that their delay resulted from an
inadvertent filing error. See Def. Opp. at 6 n. 2. In a letter
to the Court accompanying the motion when it was filed on March
15, defense counsel explained that although she thought the
motion had been properly filed pursuant to the electronic case
filing system, she realized on or around March 14 that it had not
been filed. The Court considers that letter to be a motion under
Rule 6(b) to enlarge the time by which to file the motion to
dismiss. Accordingly, the Court deems the Rule 12(b)(6) motion to
have been filed nunc pro tunc on February 28, 2005. Having
found that defendants' motion to dismiss was timely filed, the
Court also finds that defendants properly moved to dismiss
plaintiff's complaint in lieu of filing an answer as Rule 12(b)
plainly permits them to do. Accordingly, the Court denies
plaintiff's motion for a default judgment against defendants.
For the reasons stated above, the Court denies plaintiff's
motion for a default judgment. In view of the Court's decision
that defendants' motion to dismiss was timely filed, plaintiff
will have the opportunity to oppose that motion if he wishes.
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