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Washiw v. New York City Board of Education

February 5, 2007

WALTER I WACHIW, PLAINTIFF,
v.
NEW YORK CITY BOARD OF EDUCATION AND J & L INFORMATION SYSTEM (CHATCOM INC.), DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

I. BACKGROUND

Defendant Board of Education of the City of New York (the "BOE") filed a motion to dismiss plaintiff's second amended complaint pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff Walter Iwachiw ("Iwachiw") filed a crossmotion for default judgment or for leave to file a third amended complaint. For the reasons that follow, plaintiff's motion for default is denied and BOE's motion to dismiss is granted. Plaintiff's motion for leave to amend is also denied. Accordingly, the case is dismissed with prejudice.

Plaintiff commenced this action pro se on April 21, 2000. On July 17, 2000, pro se plaintiff requested permission to file an amended complaint. Magistrate Judge Boyle granted plaintiff's request and, on October 2, 2000, plaintiff filed an amended complaint against the BOE, as well as the Board of Cooperative Services Nassau ("Boces Nassau"), the Board of Cooperative Services Eastern Suffolk ("Boces Eastern Suffolk"), the Board of Cooperative Services Western Suffolk ("Boces Western Suffolk"), the Board of Cooperative Services Westchester ("Boces Westchester") (collectively, the "Boces defendants"), Meizner Business Machines ("Meizner"), Microsoft Corporation ("Microsoft") and J&L Information Services ("J & L"). On April 6, 2001, BOE, as well as the Boces defendants, Meizner and Microsoft moved to dismiss the amended complaint. By Memorandum and Order dated March 29, 2002 (hereinafter "March 29, 2002 Order"), the Honorable Arthur D. Spatt granted defendants' motion to dismiss. The Court declined to permit plaintiff the opportunity to file another amended complaint against the Boces defendants, Meizner or Microsoft. (March 29, 2002 Order at 23.) In addition, Judge Spatt ordered that plaintiff must seek leave of the court before filing any actions against those defendants arising out of or relating to the alleged conspiracy to fix bid prices for the sale of computer-related equipment and services to schools and governmental agencies in New York and New Jersey and/or relating to the elimination of the plaintiff as a potential bidder for the sale of equipment and services. (March 29, 2002 Order at 30.) However, "because of the plaintiff's pro se status and the fact that a claim could arise out of the non-responsive bidder proceedings, the Court [gave] . . . plaintiff a final chance to file an amended complaint against the Board of Education." (Id. at 24.) Accordingly, the Court permitted plaintiff to file a second amended complaint against the BOE, within thirty days of the March 29, 2002 Order.

Plaintiff filed a second amended complaint on May 28, 2002. However, contrary to Judge Spatt's Order, plaintiff did not amend the caption to exclude the defendants who were previously dismissed with prejudice. On March 31, 2006, this case was re-assigned to the undersigned. By Order dated April 27, 2006, the Court requested a status letter. On May 4, 2006, BOE requested an extension of time to answer or respond to the complaint and permission to file a motion to dismiss. By Order dated May 5, 2006, the Court granted the BOE's request. By Order dated June 2, 2006, this Court amended the May 5, 2006 Order to dismiss the claims against the Boces defendants, Meizner and Microsoft pursuant to Judge Spatt's prior Order. By letter dated June 21, 2006, counsel for BOE informed this Court that it had served its motion on plaintiff, but had not received an opposition. (See Docket Entry # 88.) On June 21, 2006, plaintiff requested an entry of default against BOE. BOE's fully briefed motion to dismiss, along with a cross-motion by plaintiff for default judgment or to amend the complaint, was filed on July 6, 2006.*fn1

The factual background of the case is described in Judge Platt's March 29, 2002 Order. Accordingly, familiarity with these facts is assumed.

II. DISCUSSION

A. Default Motion

Pursuant to Fed. R. Civ. P. 55, "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise," default judgment may be entered.*fn2 FED. R. CIV. P. 55. Because default judgments are generally disfavored, in addition to the requirements of Rule 55, courts in this circuit examine three principal factors: "(1) whether the default was willful, (2) whether the defendant demonstrates the existence of a meritorious defense, and (3) whether, [denying] the default will cause the nondefaulting party prejudice." SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998); Trustees v. Rumar Typesetting & Design, No. 05-CV-1455 (FLE), 2006 U.S. Dist. LEXIS 26662, at *4 (S.D.N.Y. May 5, 2006) (same); cf. Candelaria v. Erickson, No. 01-CV-8594 (LTS), 2005 U.S. Dist. LEXIS 12840, at *32 (S.D.N.Y. July 27, 2005) (listing the three factors and noting that an opposition to a motion for default judgment is evaluated under the same standard that is used for evaluating motions to set aside an entry of default). "It is well established that default judgments are disfavored. A clear preference exists for cases to be adjudicated on the merits." Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 174 (2d Cir. 2001). Thus, doubts "should be resolved in favor of the defaulting party." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993).

Here, the Court finds that the entry of default is not warranted. Though BOE failed to timely answer or otherwise plead, BOE has demonstrated that the failure was not willful or otherwise in bad faith. BOE had previously appeared and defended itself in this action. Upon learning of its oversight, BOE immediately requested an enlargement of time to answer or otherwise respond and permission to file a motion to dismiss, which BOE timely served. Thus, BOE's actions do not demonstrate a willful effort to avoid its obligations. See, e.g., Enron Oil Corp., 10 F.3d at 98 (holding that it was an abuse of discretion to deny defendant's motion to set aside an entry of default, noting that defendant had initially timely filed a motion to dismiss and had made good faith efforts to protect his rights).

The second prong, which examines whether BOE has a meritorious defense, "should be construed generously." Enron Oil, 10 F.3d at 96. "`[T]he defense need not be ultimately persuasive at this stage.' A defendant `must merely make a sufficient showing to justify further briefing and consideration by the district judge.'" Candelaria, 2005 U.S. Dist. LEXIS 12840, at *35 (quoting Gravatt v. City of New York, No. 97-CV-0354 (RWS), 1997 WL 419955, at *4 (S.D.N.Y. July 28, 1997)). As stated infra, BOE has put forth meritorious arguments on why plaintiff's case should be dismissed under Rule 12. Accordingly, BOE has satisfied this prong.

Finally, the Court concludes that plaintiff has not demonstrated prejudice. The Court evaluates any prejudice the plaintiff suffered as a result of BOE's failure to timely answer or otherwise respond. Plaintiff filed the second amended complaint on May 28, 2002. Plaintiff did not file the initial motion for default judgment until June 21, 2006, after having been served with BOE's motion to dismiss. This excessive delay before seeking relief indicates that plaintiff is not prejudiced by any further delay. Enron, 10 F.3d at 98 ("The fact that plaintiff waited over a year before seeking such relief strongly suggests that some further delay will not unduly prejudice it."). Further, as stated infra, after several attempts, plaintiff has failed to state a cognizable claim; thus, no prejudice has ensued from the unintentional delay in responding to plaintiff's complaint. Accordingly, because each of the above factors weighs in favor of BOE, plaintiff's motion for default judgment is denied.

B. Fed. R. Civ. P. 8(a)

Federal Rule of Civil Procedure 8(a) requires a plaintiff to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). "[T]he `short and plain statement' must provide the defendant with `fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "`Fair notice' is `that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may ...


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