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October 13, 2005.


The opinion of the court was delivered by: LAURA SWAIN, District Judge


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 damages.


  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.

  1. Willfulness

  Captain Defendants

  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.

  Officer Defendants

  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.) ...

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