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Goodrich v. WFS Financial

April 18, 2008


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge


Plaintiffs, Joshua and Cindy Goodrich, commenced this action asserting claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, the New York Uniform Commercial Code § 9-609(b)(2), and for malicious prosecution, libel, slander, the intentional and/or negligent infliction of emotional distress, and an assault that arose out of the repossession of their vehicle by defendants. Presently before the Court is Plaintiff's Motion for Default Judgment against two of the defendants, Jacque R. Hall and Michael P. Weiland. Defendant Weiland filed no papers in opposition to the motion. Defendant Hall has opposed the motion.


Plaintiffs' original Complaint was filed on November 29, 2006 and was properly served on Defendant Hall on February 9, 2007. On the same day Hall's answer was due, Plaintiffs filed an Amended Complaint. It was noted at a pre-trial conference that Defendant Hall was incarcerated and in default. Defendant Weiland was served on February 19, 2007. His answer was due on March 11, 2007.

On November 1, 2007, Plaintiffs requested the entry of default against both defendants, and the clerk entered default on December 20, 2007. On February 19, 2008, Plaintiffs filed this Motion for Default Judgment. On March 10, 2008, Defendant Hall filed opposition papers.


Opposition papers filed against a motion for a default judgment will be treated as a motion to set aside the entry of a default. Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981). Fed. R. Civ. P. 55(c) authorizes the setting aside of a default or default judgment for "good cause."

In determining whether to set aside a default, courts consider whether: 1) the default was willful; 2) setting aside the default would prejudice the adversary; and 3) a meritorious defense is presented. Meehan, 652 F.2d at 277; see also Pecarsky v. Ltd., 249 F.3d 167, 171 (2d Cir. 2001). Motions to vacate default judgments fall within the discretion of the district judge, and "all doubts should be resolved in favor of a trial on the merits." Mitchell v. Greenwood Bank of Bethel, Inc., 827 F.Supp. 106, 110 (N.D.N.Y. 1993) (citing Davis v. Musler, 713 F.2d 907, 915 (2d Cir. 1983); Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983)). Further, a pro se litigant is held to a lesser standard in terms of satisfying procedural rules and, hence, a default judgment should be used "sparingly" against these parties. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). With this in mind, the Court will address the three factors in turn.

a. Willful Default

Willfulness, in this context, is interpreted as being more than "merely negligent or careless." S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998). For example, litigants have "willfully defaulted" by failing to respond to motions without explanation or attempting to evade service to avoid answering a complaint. Id. at 738-39 (citing U.S. v. Cirami, 535 F.2d 736, 739 (2d Cir. 1976); Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 243-44 (2d Cir. 1994)). Litigants have avoided default judgments where there have been inadvertent filing mistakes by a clerk or where a pro se defendant failed to receive a second amended complaint. Id. at 738 (citing American Alliance Insurance Co. v. Eagle Insurance Co., 92 F.3d 57, 61 (2d Cir. 1996); Enron Oil Corp., 10 F.3d. at 97).

Here, Defendant Hall was served on February 9, 2007. He failed to submit a response until March 10, 2008 when he filed a Response in Opposition to Plaintiff's Motion for Default Judgment. In his Response, Defendant Hall's excuse for failing to respond until now was that he was incarcerated and "was not sure [what] to do with [papers he had received] and could not obtain legal advise [sic]." He provides no evidence that he attempted to respond earlier or seek legal advice.

In Pecarsky, 249 F.3d at 172-73, the Second Circuit noted that the district court ordered a default judgment "more quickly than usual," citing several cases where default was only entered after several months or even a year had passed with no response. Here, Defendant Hall has surpassed this timing threshold. Moreover, Defendant Hall fails to provide an adequate response to the delay and has not demonstrated that he took any efforts to respond in a timely manner.

Despite a lessened standard for pro se litigants, the Court cannot allow litigants to ignore claims that have been made against them for such a long period. To conclude otherwise would result in unreasonable delays for all parties and the courts. Therefore, because Hall acknowledges having received the Complaint and admits having done ...

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