United States District Court, S.D. New York
OPINION & ORDER ADOPTING REPORT &
Abrams United States District Judge.
Ashley Autumn Kovalchik brings this action against Defendant
Tony Simmons, a former employee of the City of New York's
Department of Juvenile Justice, under 42 U.S.C. § 1983.
Before the Court is the March 21, 2016 Report and
Recommendation of Magistrate Judge Frank Maas (the
"Report"), which recommends that the Court award
Kovalchik $300, 000 in compensatory damages, $300, 000 in
punitive damages, $4, 040 in attorney's fees, and $350 in
costs. Also before the Court is Simmons' request that the
Court set aside the entry of default. For the reasons set
forth below, the Court denies Simmons' request to set
aside the default and adopts the Report in its entirety.
September 2005, Kovalchik was a fifteen-year-old resident of
a youth detention facility in New York. On or about September
12, 2005, Kovalchik was scheduled to appear before the New
York County Family Court. See Compl. ¶ 13 (Dkt.
1). Simmons, then a sworn officer and an official of the
Department of Juvenile Justice, escorted Kovalchik from a
holding center to an elevator. See Id. ¶ 16.
Once in the elevator, Simmons allegedly raped Kovalchik.
See Id. ¶¶ 20-21. Simmons was arrested and
charged with sexually assaulting Kovalchik and other female
juvenile detainees in the custody of the Department of
Juvenile Services. See Id. ¶¶ 25,
13, 2009, Kovalchik brought this action against Simmons and
the City of New York under 42 U.S.C. § 1983, alleging
violations of her constitutional rights. On May 28, 2009,
Simmons was served with the summons and complaint.
See Dkt. 6. Although he was deposed at least twice
over the next three years, see Decl. of David M.
Pollack in Supp. of Def's Mot. for Summ. J.
("Pollack Deck") Ex. B at 1 (Dkt. 50); Decl. of
Arkady Frekhtman in Supp. of Def's Mot. for Summ. J.
("Frekhtman Deck") Ex. C at 1 (Dkt. 61), Simmons
did not answer or otherwise respond to the complaint. The
City, however, answered the complaint and, after four years
of discovery, moved for summary judgment. See Answer
(Dkt. 4); Def's Mot. for Summ. J. (Dkt. 48). Kovalchik
cross-moved for summary judgment against the City and
Simmons. See PL's Mot. for Summ. J. (Dkt. 55).
Simmons did not respond to Kovalchik's motion. On
September 18, 2014, the Court granted the City's motion
for summary judgment and denied Kovalchik's cross-motion
for summary judgment. See Opinion & Order (Dkt.
October 15, 2014, upon Kovalchik's request, the Clerk of
Court entered a certificate of default against Simmons.
See Clerk's Certificate (Dkt. 67). On November
4, 2014, Kovalchik moved for default judgment against
Simmons. See Mot. for Default J. (Dkt. 69). On
November 21, 2014, the Court held an order to show cause
hearing on Kovalchik's motion; Simmons did not appear.
The same day, the Court granted Kovalchik's motion and
referred the case to Judge Maas for a damages inquest.
See Order (Dkt. 71).
March 21, 2016, Judge Maas issued the Report. See
Dkt. 82. Judge Maas noted that although Kovalchik had
submitted her inquest papers on March 19, 2015, Simmons had
not responded to the inquest order and had not made any
contact with the Court. See Report at 2. After
reviewing Kovalchik's evidence, Judge Maas recommended
that the Court award Kovalchik $604, 390, consisting of $300,
000 in compensatory damages, $300, 000 in punitive damages,
$4, 040 in attorney's fees, and $350 in costs. See
Id. at 2, 20. Judge Maas advised the parties that any
written objections to the Report must be filed within
fourteen days of service. See Id. at 21.
March 30, 2016, Simmons submitted a letter to the Court-his
first correspondence with the Court in the nearly seven years
that the case had been pending. See PL's Letter
to Ct. (Mar. 30, 2016) (Dkt. 84). Simmons wrote that he
"came home from prison [on] Feb. 25, 2015 and only ha[s]
a temporary job as a helper on a food truck, " that he
did "not understand anything about a report and
recommendation, " and that he had "no clue what to
do." Id. Over the next eight months, the Court
granted Simmons six extensions of time to file objections to
the Report. See Dkts. 85, 88, 91, 94, 95, 96.
Simmons' current counsel represents that, during this
period, Simmons was arrested for a parole violation, entered
a drug-treatment facility, and lost contact with his
attorney. See PL's Letter to Ct. at 1-2 (Oct.
28, 2016) (Dkt. 96).
December 30, 2016, Simmons filed a response to the Report.
See Def's Obj. to the Report &
Recommendation (Dkt. 97); Tony Simmons Aff in Supp. of Mot.
to Set Aside Default J. & Obj. to the R. & R.
("Simmons Aff") (Dkt. 97-2). According to his
affidavit, Simmons was incarcerated from January 25, 2011 to
February 25, 2015. See Simmons Aff. ¶ 2.
Simmons claims that, while he was in custody, his former
attorney "counseled [him] to disregard all
communications regarding [this] case, " advising Simmons
that he "would take care of this civil matter ... by
obtaining a 'stay.'" Id. ¶ 3.
Simmons claims that he "believed that [he] was excused
from making any appearance or filing any responses" in
this case. Id. Simmons notes that he "was found
not guilty in the criminal trial of Ms. Kovalchik's
allegations in this case" and asserts that he has a
"meritorious defense that [he] did not commit any of the
torts Ms. Kovalchik alleges." Id. ¶ 7.
While Simmons did not file a formal motion to set aside the
default, he submitted his affidavit "in support of
motion to set aside default judgment."
55(c) of the Federal Rules of Civil Procedure provides that a
court "may set aside an entry of default for good
cause." Fed.R.Civ.P. 55(c). "Because Rule 55(c)
does not define the term 'good cause, ' the Second
Circuit has established three criteria that must be assessed
in order to decide whether to relieve a party from default or
from a default judgment." Bricklayers & Allied
Craftworkers Local 2, Albany, N.Y.Pension Fund v. Moulton
Masonry & Constr., LLC, 779 F.3d 182, 186 (2d Cir.
2015) (per curiam) (alterations omitted) (quoting Enron
Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)).
"These criteria are: '(1) the willfulness of
default, (2) the existence of any meritorious defenses, and
(3) prejudice to the non-defaulting party.'"
Id. (quoting Guggenheim Capital, LLC v.
Birnbaum, 722 F.3d 444, 455 (2d Cir. 2013)). A motion to
set aside a default is "addressed to the sound
discretion of the district court." SEC v.
McNulty, 137 F.3d 732, 738 (2d Cir. 1998).
Second Circuit has "expressed a strong 'preference
for resolving disputes on the merits.'" New York
v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (quoting
Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508,
514 (2d Cir. 2001)); see also 10 James W. Moore et
al., Moore's Federal Practice § 55.81 (3d
ed. 2015) ("Courts have traditionally disfavored default
judgments."). "[A]n understandable zeal for a tidy,
reduced calendar of cases should not overcome a court's
duty to do justice in the particular case." Enron
Oil Corp., 10 F.3d at 96. "Accordingly, in ruling
on a motion to vacate a default judgment, all doubts must be
resolved in favor of the party seeking relief from the
judgment in order to ensure that to the extent possible,
disputes are resolved on their merits." Green,
420 F.3d at 104.
Motion to ...