United States District Court, N.D. New York
DOUGLAS E. KAMPFER, Plaintiff,
ANDREW CUOMO, Governor State of New York, Defendant
Douglas E. Kampfer, PLAINTIFF, Pro se, Mayfield, NY.
FOR DEFENDANT: ADRIENNE J. KERWIN, Assistant Attorney General, OF COUNSEL, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY.
Gary L. Sharpe, Chief United States District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Douglas E. Kampfer commenced this action, which attacks the New York Secure Ammunition and Firearms Enforcement Act (hereinafter " the SAFE Act" ), against Andrew M. Cuomo, Governor of the State of New York. (Am. Compl., Dkt. No. 21 at 3-6.) Pending are Cuomo's motions to set aside entry of default, (Dkt. No. 33), dismiss the complaint, (Dkt. No. 17), and requesting that the court consider the original motion to dismiss as against the amended complaint, (Dkt. No. 22), and Kampfer's cross motion for default judgment, (Dkt. No. 34). For the reasons that follow, Cuomo's motions are granted, and Kampfer's cross motion is denied.
On January 15, 2013, Cuomo signed the SAFE Act into Law. (Am. Compl. ¶ 4.) Cuomo publicly commented that, in light of the tragedy in Newtown, Connecticut, the legislation was " necessary . . . to protect the lives of citizens of the State of New York." ( Id.) By virtue of the SAFE Act's passage, Kampfer, who did not own an " assault weapon" prior to January 15, 2013, is now precluded from owning such a firearm. ( Id.) The SAFE Act also bans felons and the mentally ill from owning " assault weapons," but Kampfer is not a felon, nor has he been declared mentally ill. ( Id.)
B. The SAFE Act
As relevant here, the SAFE Act amended the definition of " [a]ssault weapon" provided in Penal Law § 265.00(22), and " [l]arge capacity ammunition feeding device" set forth in Penal Law § 265.00(23). L. 2013, ch. 1, § § 37, 38. As amended by the SAFE Act, the definition of " assault weapon" is defined as: (1) a semiautomatic rifle with the ability to accept a detachable magazine plus one additional listed characteristic; (2) a semiautomatic shotgun plus one additional listed characteristic; (3) a semiautomatic pistol with the ability to accept a detachable magazine plus one additional characteristic; (4) a revolving cylinder shotgun; (5) certain semiautomatic rifles, shotguns, and pistols that were formerly explicitly excepted from the definition; and, finally, (6) semiautomatic rifles, shotguns, or pistols meeting any of the first three definitions and possessed prior to January 15, 2013. See N.Y. Penal Law § 265.00(22)(a)-(f). While the definition of " [a]ssault weapon" was expanded, which had the practical effect of criminalizing the possession of a greater number of guns or otherwise restricting them, see, e.g., N.Y. Penal Law § § 265.00(3)(e), 265.01-b(2), 265.02(7), 265.10(2), (3), 400.00(16-a), a grandfather provision was also included that permitted certain individuals who possessed " assault weapons," as defined by
§ 265.00(22)(e) and (f), before the January 15, 2013 effective date to lawfully continue to possess such " assault weapons," but required registration of them within a prescribed time period. L. 2013, ch. 1 § § 37, 48 (codified at N.Y. Penal Law § 265.00(22)(g)(v); § 400.00(16-a)).
The definition of " [l]arge capacity ammunition feeding device" was expanded to include, among other things, devices with a capacity of ten or less rounds of ammunition, but " containing more than seven rounds of ammunition," or those obtained after the effective date that have " a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition." L. 2013, ch. 1, § 38. Related to ammunition feeding devices, Penal Law § 265.37 was added, which makes unlawful the knowing possession of an ammunition feeding device that was possessed before the effective date and has the capacity to accept more than seven but less than ten rounds of ammunition if it contains more than seven rounds of ammunition. L. 2013, ch. 1, § 46-a. The provisions related to ammunition feeding devices have since been amended, however, and the definitional portion has been " suspended and [is] not effective," whereas § 265.37 now prohibits only the knowing possession of an ammunition feeding device where such device contains more than seven rounds of ammunition. L. 2013, ch. 57, pt. FF, § § 2, 4.
C. Procedural History
Kampfer commenced this action on January 23, 2013. (Dkt. No. 1.) Before filing an answer, Cuomo moved to dismiss the complaint for failure to state a claim. (Dkt. No. 17.) In response to that motion, and less than twenty-one days after it was filed, Kampfer filed an amended complaint. ( See generally Am. Compl.) Thereafter, Kampfer sought entry of default pursuant to Fed.R.Civ.P. 55(a) and N.D.N.Y. L.R. 55.1, citing Cuomo's failure to timely respond to his amended complaint, (Dkt. No. 23), which, by one day, preceded Cuomo's renewal of his motion to dismiss against the amended complaint, (Dkt. No. 22). Pointing out that Cuomo failed to timely serve an answer to the amended complaint, Kampfer again sought entry of default. (Dkt. No. 28.) The Clerk eventually entered Cuomo's default. (Dkt. No. 32.) Following entry of default, Cuomo moved to vacate the default pursuant to Fed.R.Civ.P. 55(c), (Dkt. No. 33), and Kampfer cross moved for default judgment, (Dkt. No. 34).
III. Standards of Review
A. Motion to Set Aside Default
" The court may set aside an entry of default for good cause," Fed.R.Civ.P. 55(c), which requires the court's consideration of three factors: " (1) whether the default was willful; (2) whether setting aside the default would prejudice the party for whom default was awarded; and (3) whether the moving party has presented a meritorious defense." ...