Dejesus v. Reese, No. 1:2012cv04678 - Document 20 (S.D.N.Y. 2013)
Court Description: MEMORANDUM OPINION AND ORDER. The plaintiff's application for the entry of a default judgment is denied. On a separate issue, the Court granted the plaintiff's application to proceed in forma pauperis on August 20, 2012, however, the motion was not closed on the docket sheet. Therefore, the Clerk is directed to close docket no. 1. (Signed by Judge John G. Koeltl on 1/9/2013) (rjm)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERTO DEJESUS, Plaintiff, 12 Civ. 4678 (JGK) - against - MEMORANDUM OPINION AND ORDER C.O. LARON REESE, Defendant. JOHN G. KOELTL, District Judge: The Court previously directed the defendant to file an answer to the plaintiff s Complaint by December 5, 2012. (Endorsed Letter, Nov. 7, 2012, ECF No. 14.) filed on December 7, 2012. The Answer was (Answer, ECF No. 16.) On December 20, 2012, the plaintiff sent the attached letter to the Court requesting the entry of default judgment against the defendant because of the defendant s failure to file a timely answer to the Complaint. The application is denied. The plaintiff failed to obtain an entry of default against the defendant which is a prerequisite to obtaining a default judgment. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011). In any event, the defendant has now answered the Complaint, although two days late, and that indicates that the motion for a default judgment should be denied on the merits. Denying the entry of a default judgment based on a two day delay would not prejudice the plaintiff at this early stage of the litigation. Furthermore, the Answer presents several potentially meritorious defenses, among them failure to state a claim on which relief may be granted and qualified immunity. (Answer ~~ II, 14.) In addition, a default judgment would be contrary to the preference for dispositions on the merits rather than on the basis of procedural errors. v. Sotheby's, Inc., 141 F.R.D. 29, 35 (S.D.N.Y. 1992) John ("Defaults are disfavored and disputes connected with a motion to vacate a default are resolved in favor of the movant so as to encourage a decision on the merits."). Therefore, the plaintiff's application for the entry of a default judgment is denied. On a separate issue, the Court granted the plaintiff's application to proceed in forma pauperis on August 20, 2012, however, the motion was not closed on the docket sheet. Therefore, the Clerk is directed to close docket no. 1. SO ORDERED. Dated: New York, New York January 9, 2013 Koeltl District Judge 2 Robert DeJesus 12-A-0084 Downstate Correctional Facility Box-F Red Schoolhouse Road Fishkill, New York 12524-0445 '~ ....."',,_ 'f" ~ \,,~ ...-#' ~ ..... ," " December 20th; 2012 ~~~r~u~~ ~heK~~~;~k r~ United Sta~es ~istrict court0h Southern D1.str1.ct of New Yor \\w 500 Pearl Street, Room #230 \U\J\ New York, New York 10007 L \ RE;Roberto DeJesus vs. C.O. L Dear Ms. Kra]ick: Please be advised that I am the plaintiff on the above-referenced matter. On November 5th, 2012 Mr. Patrick Beath, the Assistant Corpor ation Counsel of the office of Michael A. Cardozo, Corporation Counsel of the City of New York, and the attorney assigned to the above referenced matter respectfully requested that the court grant the defendant Correction Officer Laron Reese a (30) thirty day enlargement of time to answer or otherwise respond to the complaint in this matter, from November 5th, 2012 until December 5th, 2012 so that the defendant Laron Reese won't be prejudice as the Assistant Corporation Counsel makes the necessary representational decision under New York Gen. Mun. L. § 5 O-·k. On November 7th, 2012 the Honorable Judge John G. Koeltl granted the defendant application for an enlargement of time until December 5th, 2012, to answer or otherwise respond to the plaintiff complaint. Accordingly, the defendant did not respond to the plaintiff complaint within the time given by the Honorable Judge John G. Koeltl to answer. The plaintiff Roberto DeJesus respectfully request that a "Default Judgement" be entered, for the failure of the defendant not answering within the time given. Thank 10U for your time in this important matter and I hope to hear from you soon. ~ Roberto DeJe~u~s~I;2~--A~-~0~084 CC. Mr. Patrick Beath Assistant Corporation Counsel the City of New York Law Department 100 Church St. New York, N.Y. 10007 r~.1 :7~D ChAMBt:::RS OF JOHN G. KOElTL U .D.J. THE CITY OF NEW YORK LAW DEPARTMENT PATRICK BEATlf 100 CHURCH STREET NEW YORK, NEW YORK 10007 MICHAEL A. CARDOZO Corporalion Counsel Assistant Corporation Counsel pbcath@law.nyc,gov Pl1one: (212) 788-0S89 Fax: (2 J 2) 788-9776 November 5, 2012 BY HAND DELIVERY Honorable John G. Koeltl United States District Judge Southern District of New York 500 Pearl Street New York, New York 10007 Re: APPLICATION GRANTED ~SO ORDERED /r, fc/fhl) (JI (G yvv'V/_ 7/; r. JOhn G. Koelll, U.S:D.J. 1,/ Roberto Dejesus v. C.O. La'n Reese, shield 17189 12 Civ. 4678 OGK) Your Honor: I am an Assistant Corporation Counsel in the office of Michael A. Cardozo, Corporation COtmsel of the City of New York, and the attorney assigned to the above-referenced matter. This office writes to respectfully request that the Court, sua sponte, grant defendant Correction Officer Laron Reese a thirty (30) day enlargement of time to answer or otherwise respond to the complaint in this matter, from November 5, 2012 until December 5, 2012, so as not to prejudice defendant Reese as this office makes the necessary representational decision under New York Gen. Mun. L. § 50-k. Because plaintiff is cll"i-rentJy incarcerated and, therefore, cannot be expeditiously contacted, this request is submitted without his consent. By way of background, plaintiff alleges that, on February 16, 2011, while he was an inmate in the custody of the New York City Department of Correction ("DOC"), defendall1 Reese used excessive force against him. Plaintiff filed the complaint in this matter on June 13, 2012, and was allowed to proceed in forma pauperis on August 20, 2012. On September 6, 2012, the DOC waived service of process on defendant Reese's behalf, making his answer due on November 5, 2012. However, an enlargement of time to respond on behalf of defendant Reese is needed while this office attempts to resolve the necessary representational issues with him in accordance with our obligation under O.M.L. §50-k. See Mercurio v. The City of New York, et al., 758 F.2d 862, 864-65 (2d Cir. 1985) (quoting Williams v. City of New York, et al., 64 N.Y.2d 800,486 N.Y.S.2d 918 (1985)(decision whether to represent individual defendants is made by the Corporation Counsel as set forth in state law». Accordingly, this office respectfully requests that Your Honor sua sponte grant defendant Reese an enlargement of time until De<;:ember 5, 2012, to answer or otherwise respond to the complaint, so that his defenses are not jeopardized while representational issues are being decided. This office thanks the Court for its time and consideration of this request. Respectfully submitted, ~ Patrick Beath . Assistant Corporation Counsel cc: Roberto Dejesus 12-A-0084 Downstate Correctional Facility Box F Red Schoolhouse Road Fishkill, NY 12524-0445 2 UNITED STATES DISTRICT COURT CHAMBERS OF neoposV 't:. JUDGE JOHN G. KOELTL UNITED STATES COURTHOUSE 500 PEARL STREET NEW YORK, NY 10007-1312 OFFICIAL BUSINESS , .V Ul-Lo-v V~V Roberto DeJesus 12-/\.-0084 DownstatE:: Correctional Facility Box F Red Schoolhouse Road Fish!,i1I, NY 12524-0445 ,llQ8!20!2 (Jf,1;;t·kjtJ:~ .4
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