Jackson et al v. Computer Confidence Inc., No. 6:2009cv06057 - Document 46 (W.D.N.Y. 2010)
Court Description: DECISION AND ORDER denying plaintiffs' motion for default judgment without prejudice. Signed by Hon. Michael A. Telesca on 9/2/10. (JMC)
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Jackson et al v. Computer Confidence Inc. Doc. 46 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _________________________________________ DONNA JACKSON, JOSEPH MAGGERINE, PHILLIP ROBERTO, on behalf of themselves and all other current and former employees similarly situated, ORDER FOR DEFAULT JUDGMENT 09-CV-6057 Plaintiffs, v. COMPUTER CONFIDENCE, INC., Defendant. _________________________________________ INTRODUCTION Plaintiffs, Donna Roberto ( Plaintiffs ) Computer Confidence, Jackson, brought Inc. Joseph this Maggerine action ( Defendant ) and against pursuant to Phillip defendant, the Fair Labor Standards Act of 1983, as amended, 29 U.S.C. ยง201 et seq. ( FLSA ) for declaratory relief and damages in connection with Defendant s alleged failure overtime wages and bonuses. to, inter alia, pay Plaintiffs Plaintiffs move for entry of a default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure against Defendant as a result of Defendant s failure to appear and otherwise defend this action. BACKGROUND Plaintiffs commenced this action in February 2009. (Dkt. No. 1). Defendant initially appeared and was represented by counsel. (Dkt. No. 3). Defendant moved to dismiss Plaintiffs Dockets.Justia.com original complaint complaint. and Plaintiffs (Dkt Nos., 10, 15). cross-moved to amend the After the motions were fully briefed and the matter submitted, I denied Defendant s motion to dismiss and granted Plaintiffs cross-motion to amend. (Dkt. No. 33). On February Complaint, respond. to 26, Plaintiffs Defendant which 2010 failed (Dkt. No. 34). served to their answer or Amended otherwise In April 2010, Defendant s counsel moved to withdraw, which was granted. In the Court s Order dated May 18, 2010, Defendant was afforded 30 days within which to retain another attorney. (Dkt. No. 40). The Order also provided that, [Defendant] is further advised that failure to retain another attorney within the prescribed time may result in a default judgment against it because a corporation may not proceed pro se. (Id.). Defendant s time to retain another attorney expired on June 17, 2010, and since February 2010, Defendant has failed to appear (i.e., answer the Amended Complaint) or otherwise defend this action. the Court On July 8, 2010, Plaintiffs filed and the Clerk of entered a Request for Entry of Default against Defendant pursuant to Federal Rule of Civil Procedure 55(a). See Dkt. No. 42, 43; Fed. R. Civ. P. 55(a). 2 On July 9, 2010, Plaintiffs filed the instant Motion for Default Judgment ( Plaintiffs Motion ) pursuant to Rule 55(b) of the Federal Rules of Civil Procedure. 55(b). See Dkt. No. 44; Fed. R. Civ. P. Defendant has not responded to Plaintiffs Motion. DISCUSSION Rule 55 of the Federal Rules of Civil Procedure ( Rule 55") provides for entry of a judgment by default [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules. Fed. R. Civ. P. 55(a). Rule 55 sets forth a two-step process that the Court must follow before it may enter a default judgment against a defendant. See Robertson v. Doe, 2008 WL 2519894, *3 (S.D.N.Y. 2008); Fashiontv.com GMBH v. Hew, 2007 WL 2363694, *1 -2 (S.D.N.Y. 2007). First, Rule 55(a) provides that when a party fails to plead or otherwise defend an action, the Clerk of the Court must enter the party's pursuant to default. Rule See 55(b)(2), Fed. the R. Civ. moving P. party 55(a). is Second, required present its application for entry of judgment to the court. id. to See Rule 55(b)(2) further provides that, [i]f the party against whom a default judgment is sought has appeared personally or by a representative, that party or representative must be served 3 with written notice of the application . . . . Id. Thus, once a party has appeared in an action, notice of the default judgment application must opportunity to be show default judgment. sent to cause that party so why that the court should it not has an enter a See Robertson, 2008 WL 2519894, *3; Fed. R. Civ. P. 55(b)(2). In the requirements instant of Rule case, 55(a) Plaintiff and 55(b) satisfied by the obtaining threshold Entry of Default from the Clerk of the Court and by submitting the instant Motion for Entry of Default Judgment to the Court. However, no certificate of service was provided evidencing that Defendant has been given notice of Plaintiffs default judgment application, as required by Rule 55(b)(2). Although the Court acknowledges the well-settled rule that a corporation cannot appear other than by its attorney (see Robertson, 2008 WL 2519894, *4; Bernstein & Co. v. Continental Record Co., 386 F.2d 426, 427 (2d Cir. 1967)), Plaintiffs Motion was only electronically served on Defendant s former counsel. There is no proof in the record that the instant motion was served upon Defendant itself in accordance with Rule 55, since it is no longer represented by that attorney, a fact that is known to Plaintiffs1. 1 The Court also acknowledges that Defendant s failure to retain or appoint new counsel within the time frame set forth by the Court 4 Accordingly, because Plaintiffs have failed to establish that they served the instant motion on Defendant, Plaintiffs Motion is denied without prejudice. CONCLUSION For the reasons set forth above, Plaintiffs Motion for Default Judgment against Defendant is denied without prejudice. ALL OF THE ABOVE IS SO ORDERED. s/Michael A. Telesca MICHAEL A. TELESCA United States District Judge Dated: Rochester, New York September 2, 2010 constitutes a failure to otherwise defend an action within the meaning of Rule 55, and would, upon compliance with all other provisions of the Rule, entitle Plaintiffs to a default judgment against Defendant. See Berstein & Co., 386 F.2d at 427 ( Without question, [defendant s] cavalier disregard for a court order [requiring defendant to appoint new counsel] is a failure, under Rule 55(a), to otherwise defend as provided by these rules. ) (quoting Rule 55(a)). 5
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