United States District Court, W.D. New York
ORDER AND REPORT
HUGH B. SCOTT, District Judge.
Before the Court is the defendants' motion (Docket No. 13) to vacate the entry of default (Docket No. 12).
The plaintiff, Freddy Pica ("Pica"), who is incarcerated at the Southport Correctional Facility, commenced this action pursuant to 42 U.S.C. §1983. Pica asserts that he suffers from back impairments which cause him pain. He asserts that he was prescribed Lyrica for his back pain, but that over a period of 5 or 6 days, defendant Angie Goo crushed his Lyrica. (Docket No. 1 at ¶ 27). He also asserts that defendants Ben Oakes, P.A. and Dr. Wesley Canfield unreasonably delayed his prescription for Lyrica and otherwise failed to properly treat his back impairment. (Docket No. 1 at ¶¶ 20-40).
The record reflects that service was made upon Oakes and Canfield on June 21, 2013. (Docket Nos. 8 and 9, respectively). These defendants failed to file an answer or otherwise move against the complaint as required before August 21, 2013. The plaintiff filed a request for a Clerk's entry of default on January 14, 2013 (Docket No. 10) which was granted (Docket No. 12). The defendants filed an answer to the complaint on January 15, 2014. (Docket No. 11) and subsequently filed the instant motion to vacate the default. (Docket No. 13).
Counsel for defendants, David J. Sleight ("Sleight") acknowledges that the defendants' answer to the complaint in this matter was untimely filed, but states that the delay in answering was not the fault of the defendants. Counsel represents that he was preparing for trial before another Court at the time he received notice of service upon the defendants but failed to note the service on his calendar (Docket No. 14 at ¶6). As noted above, the record reflects that the defendants filed an answer to the complaint the day after the plaintiff requested the entry of default. (Docket No. 11). The plaintiff has filed opposition to the motion to vacate the default (Docket Nos. 17 and 18). In essence, the defendant argues only that the motion to vacate the default should not be granted because the defendants' answer was untimely filed. The plaintiff asserts, in a conclusory manner and without citation to any factual basis, that the defendants' failure to timely answer the complaint was willful. (Docket No. 17 at page 3).
There is a strong preference that disputes be determined on the merits, and any doubts regarding vacatur of a default should be resolved in favor of a trial on the merits. Shah v. New York State Department of Civil Service , 168 F.3d 610, 613 (2d Cir. 1999); American Alliance Insurance Co., Ltd. v. Eagle Insurance Co. , 92 F.3d 57, 61 (2d Cir. 1996) ("Strong public policy favors resolving disputes on the merits"); Cody v. Mello , 59 F.3d 13, 15 (2d Cir. 1995) (default "is a harsh remedy to be utilized only in extreme situations"); Enron Oil Corp. v. Diakuhara , 10 F.3d 90, 95 (2d Cir. 1993). See also Springs v. Clement , 202 F.R.D. 387 (E.D.N.Y. 2001), reviewing cases.
Rule 55(c) of the Federal Rules of Civil Procedure provides that "for good cause shown the court may set aside an entry of default" and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." "The Second Circuit has held that "good cause" depends upon such factors as the willfulness of the default, the prejudice the adversary would incur were the default set aside, and the merits of the defense proffered." State Bank of India v. Chalasani , 92 F.3d 1300, 1307 (2d Cir. 1996), citing Men's Sportswear, Inc. v. Sasson Jeans. Inc. , 834 F.2d 1134, 1138 (2d Cir. 1987).
The Second Circuit has made it clear that neglect is not willfulness. American Alliance Insurance Co., Ltd. v. Eagle Insurance Co. , 92 F.3d at 61 ("We see no reason to expand this Court*s willfulness standard to include careless or negligent errors in the default judgment context"). In the instant case, the record does not support a finding that the defendants' counsel's conduct in filing the answers in this case late was willful or in bad faith. The record does not reflect that the plaintiff has been prejudiced due to the late filing. In this case, the four month delay did not preclude the plaintiffs from any form of relief requested or otherwise prejudice the plaintiff in prosecuting his claims. "[D]elay alone is not a sufficient basis for establishing prejudice. Rather, it must be shown that delay will result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion." Davis v. Musler , 713 F.2d 907, 916 (2d Cir. 1983); Kee v. Hasty , 2004 WL 807071, *4 (S.D.N.Y., 2004); Springs v. Clement , 202 F.R.D. at 394 ("[d]elay alone is insufficient to establish prejudice", citing Enron Oil Corp. v. Diakuhara , 10 F.3d at 98). As in Cody v. Mello , 59 F.3d. 13, 15 (2d. Cir. 1995), the defendant has moved promptly to seek vacatur. See also Campbell v. Shenendehowa Cent. Sch. Dist., 1993 WL 133726, at *2 (N.D.N.Y. 1993) (noting, in denying default motion where defendants had answered complaint belatedly, that courts disfavor defaults) (citing Meehan v. Snow , 652 F.2d 274, 277 (2d Cir.1981)). The preference is for courts to "reach judgments on the merits and not by way of default judgments." Shah v. N.Y. State Dep't of Civil Serv. , 168 F.3d 610, 615 (2d Cir.1999) (citations omitted). The Court finds that the defendant has articulated defenses to the claims in this case, which, if proved, would be meritorious.
Based on the above, it is recommended that the motion to vacate the default judgement be granted.
Upon filing the complaint, plaintiff was granted permission to proceed in forma pauperis and the Court (Hon. John T. Curtin), pursuant to 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3), directed the Clerk of the Court to serve the defendants -Ben Oakes, Physician's Assistant; Wesley Canfield, Doctor; and Angie "Goo"; Nurse. (Docket No. Docket No. 6.) As noted above, Acknowledgments of Receipt of Service by Mail, see N.Y.C.P.L.R., § 312-a(b), were signed and returned on behalf of Oakes and Canfield (Docket Nos. 8, 9), no Acknowledgment or other proof of service has been returned on behalf of Goo or Gorg.
Accordingly, it is ORDERED that the New York Attorney General's Office, pursuant to Valentin v. Dinkins , 121 F.3d 72 (1997), use its best efforts to ascertain an address at which Angie Goo or Gorg can be served with the summons and complaint and provide such ...