United States District Court, W.D. New York
WILL H. CATHEY, Plaintiff,
LVNV FUNDING, LLC and KIRSCHENBAUM, PHILLIPS & LEVY, P.C., Defendants.
DECISION & ORDER
G. LARIMER UNITED STATES DISTRICT JUDGE.
Will H. Cathey (“Cathey”) commenced this action
on December 11, 2015, alleging that Defendants LVNV Funding,
LLC (“LVNV”) and Kirschenbaum, Phillips &
Levy, P.C. (“KPL”) violated several sections of
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq. (“FDCPA”). (Docket # 1). By
Decision and Order dated August 3, 2017, this Court granted
Cathey's motion for leave to amend his Complaint. (Docket
# 27). Cathey then filed his First Amended Complaint
(“FAC”) on August 4, 2017. (Docket # 28).
Defendant timely responded to the FAC, but Cathey agreed to a
September 7, 2017, extension. (Docket # 33-6). Still, LVNV
failed to respond. On September 12, 2017, Cathey requested
that the Clerk of Court enter a default against LVNV pursuant
to Rule 55(a) of the Federal Rules of Civil Procedure.
(Docket # 30). The Clerk never processed that request,
perhaps because that same day-merely five days after
Cathey's agreed-to extension-LVNV filed its Answer to the
FAC. (Docket # 31). Cathey, however, did not withdraw his
request for entry of default against LVNV.
result, pending is LVNV's motion to vacate the entry of
default and to “allow the filing of LVNV's Answer
to the [FAC], ” (Docket ## 32; 32-1 at ¶ 19), and
Cathey's cross-motion to strike LVNV's Answer and for
entry of default against LVNV, (Docket # 33). For the
following reasons, LVNV's motion, which the Court
construes as a motion for leave to file a late Answer, is
granted, and LVNV's cross-motion is denied.
outset, the Court notes that there is, in fact, no default to
vacate pursuant to Rule 55(c) of the Federal Rules of Civil
Procedure. Rather, LVNV's motion essentially asks this
Court to accept its late Answer to avoid default. Therefore,
the Court will construe LVNV's motion as one for leave to
file a late answer, which is determined based on the
“same standard” as a motion to set aside a
default under Rule 55(c), “for if leave were denied the
result would be the same as entry of default.” See
Nelson v. Gleason, No. 14-cv-870, 2016 WL 6875857, *2
(W.D.N.Y. Nov. 11, 2016); see also Graves v. Corr. Med.
Serv., No. 11-cv-1005, 2015 WL 1823456, *2 (W.D.N.Y.
April 22, 2015) (stating that a motion to file a late answer
is “closely analogous to a motion to vacate a default
since the party seeking to answer is given the same
opportunity to present mitigating circumstances that it would
have had if a default had been entered and it had then moved
under Rule 55(c) to set it aside”), aff'd,
667 Fed. App'x 18 (2d Cir. June 24, 2016).
determining whether to grant a motion for leave to serve a
late answer, the relevant factors include whether the failure
to answer was willful, whether the defendant has a
meritorious defense, and whether the plaintiff would be
prejudiced by allowing the defendant to [answer].”
Graves, 2015 WL 1823456 at *2. The court can
exercise discretion in applying this standard. See Enron
Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).
Importantly, in this Circuit, there is a well-established
“preference for resolving disputes on the
merits.” Id. at 95. Therefore, defaults are
“generally disfavored and are reserved for rare
occasions” and any “doubt should be resolved in
favor of the defaulting part.” Id. at 96.
review the parties' motions and supporting papers,
LVNV's motion is granted. LVNV inadvertently missed the
deadline to file its answer because of the prolonged illness
of its counsel, which is not an unreasonable excuse and is
not willful. (Docket # 32-1 at ¶ 4). Moreover, LVNV
acted promptly to cure its default, resulting in no prejudice
to Cathey. Furthermore, the Court is satisfied that LVNV has
put forth more than mere conclusory denials of Cathey's
allegations, sufficing, at this stage, to show meritorious
defenses. In reaching this conclusion, the Court is mindful
of the Second Circuit's strong “preference for
resolving disputes on their merits, ” and that any
“doubt should be resolved in favor of the defaulting
part.” See Enron Oil Corp., 10 F.3d at 95-96.
cross-motion is also denied. The filing of five legal papers,
plus numerous affidavits and attachments-now requiring Court
involvement-could all have been avoided by the simple
courtesy of agreeing to accept an answer filed five days
late. The situation here does not warrant the extreme
sanction of striking LVNV's answer, nor entry of a
default, as granting either type of relief would “bring
about a harsh or unfair result.” See Enron Oil
Corp., 10 F.3d at 96.
these reasons, LVNV's motion to vacate entry of default,
construed by this Court as a motion for leave to file a late
answer, (Docket # 32), is GRANTED. The Court
accepts LVNV's Answer as filed on September 12, 2017.
(Docket # 31). Cathey's cross-motion to strike LVNV's
Answer to the FAC and for entry of default against LVNV,
(Docket # 33), is DENIED. In addition,