The opinion of the court was delivered by: LAURA SWAIN, District Judge
MEMORANDUM ORDER CONCERNING REPORT AND RECOMMENDATION
On May 19, 2005, Magistrate Judge Kevin Nathaniel Fox issued a
Report and Recommendation ("Report") recommending that the Court
vacate the defaults of defendants Correction Officer Jeffrey
Ragland ("Ragland"), Correction Officer Stephen Ryan ("Ryan")
(collectively, "Officer Defendants"); and Captain Stephen Cottone
("Cottone") and Captain Angel Luyanda ("Luyanda") (collectively,
"Captain Defendants"), and deny the Plaintiff's pending motion
for a default judgment as against all defendants. The Plaintiff,
Echo Westley Dixon ("Plaintiff' or "Dixon"), has filed a timely
objection to the May 19, 2005, Report.
In reviewing a Report and Recommendation, the Court "may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge."
28 U.S.C.A. § 636(b)(1)(C) (West Supp. 2004). The Court is required to make a
de novo determination as to the aspects of the Report to
which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Plaintiff contends that the Report's recommendation to vacate
the default against the Captain Defendants and the Officer
Defendants was improper because the Defendants' delay in
responding to the summons and complaint was willful and
prejudicial. Additionally, Plaintiff argues that his default
judgment motion should have been granted as against both groups
of defendants because the Report found that all of the defendants
failed to proffer a meritorious defense. Asserting that his
default judgment motion was prompted by a suggestion from Judge
Fox's chambers, he also argues that the equities weigh in favor
of granting his motion and denying defendants' application to
vacate their defaults.
The Court has considered thoroughly the Report and Dixon's
objections thereto. For the following reasons, the Court adopts
the Report's recommendation to vacate the default as to the
Captain Defendants. However, as to the Officer Defendants, the
Court sustains the objection to the recommendation to vacate the
defaults and, finding that the complaint alleges facts sufficient
to demonstrate Plaintiff's entitlement to relief, grants
Plaintiff's motion for a default judgment as against those
defendants. The Court refers this case to Magistrate Judge Fox
for further proceedings, including any necessary inquest as to
Defendants' Motion to Vacate Defaults
The Second Circuit has determined that district courts must
consider the following factors in determining whether to vacate a
default: "(1) whether the default was willful, (2) whether the
defendant demonstrates the existence of a meritorious defense,
and (3) whether, and to what extent, vacating the default will cause the nondefaulting
party prejudice." S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir.
1998) (citations omitted). The Court has reviewed de novo the
questions of willfulness, prejudice, and whether, in light of the
relevant factors, the default of the Officer and Captain
Defendants should be vacated. Courts generally view the entry of
a default judgment as an extreme remedy. Moreover,"[t]he Second
Circuit strongly prefers dispute determination on the merits."
Springs v. Clement, 202 F.R.D. 387, 394 (E.D.N.Y. 2001) (citing
Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 613
(2d Cir. 1999), Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995),
and Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir.
1993)). The question of whether relief from a default is to be
granted is committed to the sound discretion of the district
court and is addressed based on the individual circumstances of
the case. Enron Oil Corp., 10 F.3d at 95.
The Court concurs in Judge Fox's findings that the Captain
Defendants' failure to respond was not willful. "[T]he court may
find a default to have been willful where the conduct of counsel
or the litigant was egregious and was not satisfactorily
explained." McNulty, 137 F.3d at 738 (citing Am. Alliance Ins.
Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 60-61 (2d Cir. 1996)).
Further, where there is no evidence that a client has diligently
sought out counsel, the courts are more likely to conclude that a
party's inaction is willful. See United States v. Cirami,
535 F.2d 736, 741 (2d Cir. 1976) (finding client's inaction willful
where the client failed to contact the attorney to ascertain
status of the litigation at any point or even to provide the
court below with any explanation for his failure to oppose the
motion for summary judgment). In the instant case, there is no evidence that the Captain
Defendants were aware of the pendency of this action until
shortly before they filed the instant application to set aside
their defaults. Furthermore, the record does not support
Plaintiff's suggestion that the Captain Defendants directed their
coworkers to withhold the summons and complaint from them. (Pl.'s
Mem. of Law ("Pl.'s Mem.") at 2-3.) Therefore, the Captain
Defendants' statements that they lacked knowledge of this action
raise sufficient doubts as to whether their defaults were willful
to warrant vacatur of their defaults.
The Court also concurs with Judge Fox's determination that the
actions of the Officer Defendants were willful. The Officer
Defendants offer no explanation for their failure to respond to
the complaint. Instead, they simply assert that the Legal
Division's inaction was "the result of inadvertence" and that the
materials sent to the Legal Division must have been misplaced.
(Defs.' Mem. of Law in Supp. of its Mot. to Vacate Default at 3,
4.) The Officer Defendants acknowledge that they failed to
diligently track the status of either their request for legal
assistance or the instant action during the twenty-two (22)
months that followed their receipt of the summons and complaint.
(Id. at 4.) ...