Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Gabbidon

May 14, 2007


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge


In this diversity action, Plaintiff Clodagh Brown moves this Court for a default judgment against Defendant Steve A. Gabbidon pursuant to Fed. R. Civ. P. 55(b). In turn, Defendant moves pursuant to Rule 55(c) to vacate the entry of the default in this case. For the reasons stated below, Defendant's motion to vacate the entry of default is denied, and Plaintiff's motion for default judgment is granted. The judgment will be granted following an inquest pursuant to Fed. R. Civ. P. 55(b).


On September 10, 2006, at approximately 5:00 a.m, at Ninth Avenue and 16th Street, the Plaintiff, Clodagh Brown, a citizen of Ireland, was struck by a motor vehicle owned and operated by the Defendant, Steve A. Gabbidon, a citizen of the state of New Jersey. Compl. ¶¶ 2, 7. Plaintiff alleges she was lawfully in the crosswalk on Ninth Avenue when she was struck by Defendant's motor vehicle, and the accident and resulting injuries suffered were solely due to the carelessness, recklessness, and negligence of the Defendant, "without any culpable conduct on the Plaintiff's part." Id. ¶¶ 9,10. Defendant was found to be legally intoxicated after he failed to yield the right of way to Plaintiff and struck her with his motor vehicle. Id. ¶ 11. The Police Report, Ex. E, shows Defendant failed a sobriety test with a .139 BAC. The Report goes on to read that the Defendant "struck two pedestrians, breaking the windshield of his vehicle, and fled the scene of the accident." Plaintiff seeks compensatory damages in the amount of ten million dollars, punitive damages, costs and expenses.*fn1

Plaintiff commenced this action on October 4, 2006, and served Defendant with a summons and complaint on October 21, 2006. Defendant's answer was due on or before November 10, 2006. On January 5, 2007, just shy of two months after the answer was due, this Court held a pretrial conference. Only Plaintiff appeared at the conference and informed the Court that Defendant had not yet answered. At the conference, the Court invited Plaintiff to file a default with the Clerk and move for a default judgment against Defendant. On January 10, 2007, exactly two months after the return date for the answer, Plaintiff requested an extension of time to move for a default judgment because she wished to subpoena a third party witness for purposes of the inquest. On January 22, 2007, the Clerk of the Court entered a default in this case pursuant to Rule 55(a). See Decl. of Steven Martin Ex. C, Clerk's Certificate. On February 10, 2007, Defendant personally accepted service of Plaintiff's motion for default judgment; on February 13, 2007, it was filed with the Court.*fn2 On March 7, 2007, Plaintiff provided an update (via letter to the Court) regarding the status of Mr. Gabbidon's criminal case. Still there was no word from Defendant.

Thereafter, on March 14, 2007, four months after the deadline for filing an answer in this case, the Court received a phone call from Shaun Hogan notifying the Court that he had been retained by Defendant and would oppose the motion for default judgment. The Court informed Mr. Hogan of the procedure for requests and communication with chambers and asked that he fax a letter to the Court with his request. The Court received a faxed letter from Mr. Hogan that afternoon which noted his representation of Defendant, explained the reasons for delay, and requested that the Court afford him time to answer and oppose the motion for default judgment. In response, Plaintiff's counsel faxed a letter to the Court on March 15, 2007, strongly opposing Mr. Hogan's requests, arguing that no "good cause" had been shown in accordance with the requirements in this Circuit, and urging the Court to direct the Clerk to enter a default judgment against Defendant. The Court scheduled a second pretrial conference in this case for March 29, 2007 to discuss the issues raised by counsel. Both parties were represented at this conference.

The Court orally ordered that the Defendant be given an opportunity to oppose the default judgment, that the motion be fully briefed by the beginning of May, and that the parties appear on May 3, 2007 for oral argument on the motion for default judgment and any request to vacate the default. Defendant filed his Opposition to Plaintiff's Motion for Default Judgment on April 6, 2007, served on Plaintiffs on April 9, 2007. On April 10, the Court received a telephone call and follow-up fax from Plaintiff's counsel requesting an extension to file a Reply in support of its motion for default judgment, which the Court granted and ordered that the Reply be filed no later than April 23, 2007. I heard oral argument on May 3, 2007.


Pursuant to Rule 55(b), once a defendant fails to file a responsive answer, he or she is in default and an entry of default may be made by either the clerk or the judge.*fn3 See Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981) (per curiam) ("The procedural steps contemplated by the Federal Rules of Civil Procedure following a defendant's failure to plead or defend as required by the Rules begin with the entry of a default by the clerk upon plaintiff's request. Rule 55(a). Then, pursuant to Rule 55(c), the defendant has an opportunity to seek to have the default set aside. If that motion is not made or is unsuccessful, and if no hearing is needed to ascertain damages, judgment by default may be entered by the court or, if the defendant has not appeared, by the clerk. Rule 55(b)."). In considering a motion for default judgment, "the court will treat the well-pleaded factual allegations of the complaint as true, and the court will then analyze those facts for their sufficiency to state a claim." Sony Pictures Home Entm't, Inc. v. Chetney, 2007 U.S. Dist. LEXIS 13314, 4-5 (S.D.N.Y. 2007) (citations omitted).

Although Defendant Gabbidon in this case did not formally move to vacate the default, the Second Circuit has held that "opposition to a motion for a default judgment can be treated as a motion to set aside the entry of a default, despite the absence of a formal Rule 55(c) motion." Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981). At such a hearing, the burden of proof is shifted from the Plaintiff to the Defendant. Decisions to vacate an entry of default are within the discretion of the court, and any doubts should be resolved in favor of a trial on the merits. See Meehan v. Snow, 652 F.2d 274, 276-77 (2d Cir. 1981). Rule 55(c) provides than an entry of default may be set aside "for good cause shown," and the Second Circuit teaches that courts are to consider the following three factors: "(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). Each of these factors must be considered by the Court. Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 243 (2d Cir. 1984). The Court may also consider relevant equitable factors such as whether failure to file the answer was "a mistake made in good-faith and whether the entry of default would bring about a harsh or unfair result." Enron Oil, 10 F.3d at 96.


The Court considers two motions in this instance, Plaintiff's motion for default judgment pursuant to Rule 55(b), and treats Defendant's opposition as a motion to vacate the default pursuant to Rule 55(c).

A. Defendant's Motion to Vacate the Entry of Default

While the "good cause" standard of Rule 55(c) is generally more liberal than the standards for vacating a default judgment pursuant to Rule 60(b) (Randazzo v. Sowin, No. 97-CV-0967, 1998 U.S. Dist. LEXIS 10487, *6 n.1 (S.D.N.Y. Jul. 10, 1998)), and there is a strong preference for resolving disputes on their merits (Pecarsky v. Galaxiworld.Com Ltd., 249 F.3d 167, 175 (2d Cir. 2001)), the facts of this case warrant entry of a default judgment. As I expressed at oral argument, the fatal defect in Defendant's opposition is the lack of an articulable meritorious defense, or for that matter, any ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.