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Bellet v. City of Buffalo

September 8, 2010


The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge


In accordance with 28 U.S.C. §636(c), the parties have consented to proceed before a Magistrate Judge [125].*fn1 Before me are plaintiff's amended motion for a default judgment as to defendant Maureen McNamara [114] and motion for recusal [134]. For the following reasons, I order that plaintiff's motions for a default judgment [114] and for recusal [134] be granted in part and denied in part.


Plaintiff commenced this 42 U.S.C. §1983 action pro se. According to plaintiff, defendant Maureen McNamara is an employee of Mid-Erie Counseling Service. Amended Complaint [4], ¶6. Since the age of six, Jerome Walsh, Jr., was in plaintiff's lawful care and custody. Id., ¶15. On January 13, 2000, Jerome minor did not return from his school. Id., ¶15. The next morning he called defendant Rita Eisenbeis, the school's principal, who advised him to come to the school with documentation that he was Jerome's legal guardian. Id. When plaintiff arrived at the school, he had a confrontation with defendant Antonio Borrelli, a City of Buffalo Police Officer, which resulted in his arrest. Id., ¶16. At that time, "a Child Protection worker was at the school and asked the plaintiff where do you want us to take Jerry . . . I told the worker to take Jerry to Ms. Kaiser who helped me raise Jerry. Mrs. Eisenbeis said 'You can't take him to her, she is Mr. Bellet's girlfriend.' Without my permission or knowledge Ms. McNamara took Jerry to an unknown location across the City." Id., ¶18.

Thereafter, Jerome's father petitioned for custody of the boy. Id., ¶20. When plaintiff "went to the Family Court to resolve this problem, Officer Borrelli and Maureen McNamara appeared after having a meeting of the minds with the other named defendants connected to the school and influenced the Court to try me for neglect. The trial went through the whole summer, each defendant (from the school) had conspired with Borrelli to perjure themselves to deprive me of a Family relationship. Testifying that Jerry was 'a Waif, was dirty, ragged, had no winter clothes, was starving and terrified of his custodial parent' (the plaintiff). This was a conspiracy to deprive the plaintiff of my 5th and 9th amendment right and done under color of law. I was found not guilty of anything in Family Court". Id.

As a result of this conduct, plaintiff alleges that defendants violated his rights under the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments (first cause of action) and asserts a variety of state law claims (second cause of action). Id., ¶¶28 and 31.


A. Motion for Default Judgment

Defendant McNamara was personally served with the Amended Complaint [33]. Plaintiff then filed a Second Amended Complaint [61], which was not served on McNamara.

To date, McNamara has not appeared.*fn2 Therefore, plaintiff obtained a clerk's entry of default against McNamara for her failure to answer the Complaint or Amended Complaint [112 and 113].*fn3 Plaintiff now moves for a default judgment against McNamara in the amount of $60,000 [107].*fn4

Obtaining a default judgment is a two-step process. "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Rule 55(a). Thereafter, a judgment by default may be entered upon application. See Rule 55(b).

Unlike a clerk's entry of default, the entry of a default judgment is discretionary. "Default judgments are disfavored, as there is a clear preference for cases to be adjudicated on the merits. . . . Nonetheless, default judgment is an appropriate sanction for 'defaults that arise from egregious or deliberate conduct.' . . . . In considering whether to enter a default judgment, courts consider (1) the merits of the plaintiff's claim and the existence of a meritorious defense, (2) the willfulness of the default, and (3) the possibility of prejudice to the plaintiff if default is not granted." 1st Bridge LLC v. 682 Jamaica Ave., LLC, 2009 WL 301941, *1 (E.D.N.Y. 2009). See 10 Moore's Federal Practice §55.31[2] (3d ed. 2010) ("In exercising its discretion whether to grant a default judgment, the court may consider any appropriate factors").

1. The Merits of Plaintiff's Claim Against McNamara

"Prior to entering default judgment, the court must determine whether the facts alleged in the Complaint are sufficient to state a claim for relief as to each cause of action for which the plaintiff seeks default judgment." Garden City Boxing Club, Inc. v. Giambra, 2004 WL 1698633, *1 (W.D.N.Y. 2004) (Skretny, J.). "Once default has been entered, the allegations of the Complaint that establish the defendant's liability are accepted as true, except for those relating to the amount of damages." Id.

Plaintiff alleges that defendant McNamara made false allegations of abuse against him, which impacted his custody of the minor. As discussed in my July 2, 2009 Report and Recommendation [105], which was adopted by Judge Skretny [106], plaintiff has a protected liberty interest in preserving the family unit he established with Jerome. Accepting the allegations of the Amended Complaint as true, I find that plaintiff has stated a meritorious due process ...

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