The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Pro se plaintiff Dahi Raheim ("Raheim") brings the instant action against NYC Health and Hospitals Corporation ("HHC"), Officer Joe Merizalde (" Merizalde"), Sergeant Edgar Calderon ("Calderon") and Officer John Camart ("Camart") (collect i vely "defendants") alleging, inter alia, claims for violations of his civil rights under 42 U.S.C. § 1983.
On February 20, 2004, plaintiff first moved for entry of default and a default judgment against defendant Calderon because of Calderon's failure to appear for his deposition. On February 19, 2004, the Court issued an Order to Show Cause in connection with the motion by the Corporation Counsel of the City of New York to withdraw as Calderon's attorney because they were unable to locate or contact him, and he was no longer employed by the City of New York. A conference was held before the Court on March 5, 2004 and, although Calderon was ordered to appear at that conference, he failed to attend.
In a Report and Recommendation issued on March 11, 2004, the Honorable Cheryl L. Pollak, United States Magistrate Judge, recommended that a default judgment be entered against Calderon, and ordered that the remaining defendants be precluded from calling Calderon as a witness at trial and that the jury be permitted to draw a negative inference from his failure to appear. On April 5, 2004, the Report and Recommendation was adopted in full by the Honorable Raymond J. Dearie, United States District Judge. On October 27, 2006, plaintiff requested entry of a default judgment against Calderon. At a conference on February 13, 2007, counsel for defendants reported to the Court that Calderon had been located, that he had not been receiving court documents because of problems with his address, and that he wished to participate in the lawsuit. On March 6, 2007, Calderon filed a motion to file a late opposition to plaintiff's motion for entry of a default judgment, and also seeking to vacate the March 11, 2004 order, to the extent it precludes defendants from calling Calderon at trial, and permits the jury to draw a negative inference from his non-appearance.*fn1 For the reasons that follow, plaintiff's motion for entry of default is denied and defendant's motion to vacate the March 11, 2004 order is granted.
Plaintiff originally filed this action on March 8, 1996, alleging claims under 42 U.S.C. § 1983 for false arrest, malicious prosecution and excessive force, as well as state law claims for slander and intentional infliction of emotional distress against HHC, Merizalde, Calderon and Camart. (See Compl. ¶¶ 36-62.) The claims arise out of an incident that took place on November 25, 1995, when the plaintiff took his son to Coney Island Hospital for treatment and the police responded to a dispute between plaintiff and the hospital staff. On September 28, 2005, defendants filed a motion for partial summary judgment or, in the alternative, for bifurcation of the action. On January 3, 2006, Judge Dearie granted defendants' motion for partial summary judgment as to plaintiffs' negligence and federal constitutional claims against the HHC. (Jan. 3, 2006 Memorandum and Order.) Judge Dearie also granted summary judgment on plaintiff's state claims for slander and intentional infliction of emotional distress. (Id.) On February 27, 2006, plaintiff moved for reconsideration of Judge Dearie's order, pursuant to Federal Rule of Civil Procedure 59. This Court denied plaintiff's motion on April 10, 2006. On May 2, 2006, plaintiff filed a notice of appeal and, on May 15, 2006, sought leave from this Court to pursue his appeal to the Second Circuit in forma pauperis. Plaintiff's motion for leave to proceed in forma pauperis was denied on May 15, 2006. The case was set for trial on several previous dates, each of which was adjourned.
B. Facts Relating to Calderon
On April 29, 1996, an answer to the complaint was filed by Corporation Counsel for the City of New York on behalf of all defendants. Plaintiff first requested to depose defendant Calderon on May 15, 1997. Corporation Counsel failed to produce defendant to be deposed, despite plaintiff's repeated requests. On February 2, 2004, Magistrate Judge Pollak issued an order requiring Calderon to appear for a deposition within two weeks or face the court's entry of a default judgment against him. Pursuant to Magistrate Judge Pollak's order, the Corporation Counsel agreed to produce Calderon for a deposition on February 17, 2004. Calderon did not appear for the scheduled deposition, and on February 19, 2004, the Corporation Counsel formally moved to withdraw as counsel for Calderon.*fn2 On the same date, Magistrate Judge Pollak issued an order to show cause why the Corporation Counsel should not be relieved from its representation of Calderon. On March 5, 2004, Magistrate Judge Pollak granted the Corporation Counsel's motion to withdraw and recommended entry of a default judgment against Calderon. Shortly thereafter, on March 11, 2004, Judge Pollak issued a Report and Recommendation recommending that a default judgment be entered against Calderon, and that the remaining defendants be precluded from calling Calderon to testify at trial and the jury should be permitted to draw a negative inference from his failure to appear. On April 5, 2004, Judge Dearie adopted Magistrate Judge Pollak's Report and Recommendation "without qualification." (April 5, 2004 Order.)
On May 23, 2006, this Court issued a thirty-day order to show cause why a default judgment should not be entered against Calderon. The Corporation Counsel was instructed to serve a copy of the order on Calderon at his most recent address on file, and a copy was also mailed by the Court to the address listed for Calderon on the court docket, 370 Bushwick Avenue, Apt. 3B, Brooklyn, New York, 11206. On October 16, 2006, this Court issued an order permitting plaintiff to submit proposed language for a default judgment order. On October 27, 2006, plaintiff moved for default judgment against Calderon and submitted (1) a request to the Clerk of Court to enter default, (2) a proposed notation of default, (3) a proposed default judgment order, and (4) an affidavit in support of default judgment. To date, no default judgment has been entered.
In preparation for trial of the instant action, which had been re-scheduled for March 5, 2007, the Corporation Counsel retained a private investigator and requested that the investigator confirm that Calderon could not be located. (Goldenberg Decl. ¶ 12.) The private investigator provided the Corporation Counsel with a new phone number for Calderon, and the attorneys were finally able to contact him. (Id.) Upon meeting with Calderon, Corporation Counsel learned that all of the legal documents pertaining to the case had been mailed to Calderon at the correct street address, but did not reach him because they listed an incorrect apartment number. (Id. ¶ 13; Calderon Decl. ¶ 2.) According to defendant Calderon, as set forth in his declaration to the Court, there are additional residents living in the building who were also named Calderon, and none of these residents provided Calderon with correspondence relating to this case. (Goldenberg Decl. ¶ 14; Calderon Decl. ¶ 3.) In fact, defendant Calderon states that one of the residents who shares the name Calderon is elderly and has mistakenly taken mail from Calderon in the past. (Goldenberg Decl. ¶ 14; Calderon Decl. ¶ 3.) Calderon asserts that he has never received any correspondence from Corporation Counsel or from the Court, including notification of the requirement to appear for a deposition by February 18, 2004, and this Court's May 23, 2006 order to show cause why a default judgment should not be entered. (Calderon Decl. ¶¶ 4-6.) During a final pre-trial conference held before this Court on February 13, 2007, defendants explained to the Court that they had located Calderon and requested permission to file the instant motion to oppose the entry of a default judgment and to vacate the March 11, 2004 order as it relates to Calderon. On March 6, 2007, Corporation Counsel filed a Notice of Appearance on Calderon's behalf, along with the instant motion. Calderon also filed a declaration in which he requests that the Court now permit him to show cause why a default judgment should not be entered, that the Court decline to enter a default judgement against him, and that the Court vacate the March 11, 2004 order. (Calderon Decl. ¶ 7.)
II. MOTION FOR ENTRY OF DEFAULT
Federal Rule of Civil Procedure 55 sets forth the procedural steps for obtaining and vacating an entry of a default judgment. Rule 55(a) provides that "[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 . . . the clerk shall enter the party's default." Following entry of default upon the plaintiff's request, a defendant may seek to set aside the entry of default pursuant to Rule 55(c). See, e.g., Meehan v. Snow, 652 F.2d 274, 276 n.5 (2d Cir. 1981) ("Entering a default pursuant to Rule 55(a) and affording a defendant an opportunity to move to vacate it pursuant to Rule 55(c) is the preferable course."). If a Rule 55(c) motion is not made or is unsuccessful, and if no hearing is necessary to determine damages, a default judgment may be entered by the court or by the clerk. Id. at 276. Where, as here, entry of default has not yet been filed and defendants oppose the plaintiff's motion for default judgment, a district court must still apply the Rule 55(c) standard for setting aside the entry of a default. Id. at 276. Under Rule 55(c), the court may set aside an entry of ...