Opinion
23 CV 4409 (DLI) (CLP)
12-04-2023
EMELY JARA, Plaintiff, v. CAVALI NY INC., et al., Defendants.
REPORT AND RECCOMENDATION
Cheryl L. Pollak, United States Magistrate Judge
On June 14, 2023, plaintiff Emely Jara commenced this action against defendants Cavali NY Inc., Shariq Razvi, and Sarah Racaldi, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq., the New York City Human Rights Law, N.Y.C. Administrative Code §§ 8-101, et seq., the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., New York Labor Law, §§ 190, et seq., 650, et seq., and New York common law. (Compl. ¶ 1). Currently pending before this Court is plaintiff's Motion to Amend, pursuant to Fed.R.Civ.P. 15(a)(2) and/or 21, and Motion for Default Judgment, pursuant to Fed.R.Civ.P. 55. (ECF No. 14). With respect to the amendments, plaintiff proposes to add additional names/ aliases for one of the individual defendants. (Id.) For the reasons set forth below, the Court respectfully recommends that the motion to amend be granted, and that the motion for default judgment be denied without prejudice to renew.
Citations to “Compl.” refer to the Complaint filed on June 14, 2023. (ECF No. 1).
DISCUSSION
A. Background
Following the filing of the Complaint, plaintiff filed the executed summons for each of the three defendants, with answers due in July. (ECF Nos. 7, 8, 9). On August 15, 2023, plaintiff filed a Status Report informing the Court that Cavali NY Inc. had filed for bankruptcy, resulting in an automatic stay as to them, but that plaintiff was going to seek a default judgment with respect to the other two defendants. (ECF No. 10). After obtaining an entry of default from the Clerk, the plaintiff filed the present motion to amend and motion for default judgment on October 4, 2023. The combined motion was referred to the undersigned the same day.
B. Analysis
Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), a party may amend its pleading once as a matter of course “if the pleading is one to which a responsive pleading is required, [within] 21 days after service of a responsive pleading or 21 days after service of a motion under 12(b), (e), or (f), whichever is earlier.” Since no responsive pleading or motion has been filed yet in the instant case, plaintiff may amend as of right.
Once plaintiff files the Amended Complaint, the previously entered Default becomes moot since the amended complaint is now the operative pleading in the case and defendants must be served with the newly amended pleading. Once served, they are given time to respond. See, e.g., Smith v. Smith, No. 19 CV 1638, 2022 WL 1469399, at *1 (E.D.N.Y. May 10, 2022). If defendants fail to timely respond to the Amended Complaint, plaintiff can again seek an entry of default by the Clerk, and if obtained, then file a renewed motion for default judgment, pursuant to Fed.R.Civ.P. 55(a), (b).
Given the foregoing, the Court respectfully recommends that the motion to amend be granted, but that the pending motion for default judgment be denied without prejudice to renew once the defendants have been served with the Amended Complaint and given time to respond.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2); see also Fed.R.Civ.P. 6(a) (providing the method for computing time). Failure to file objections within the specified time waives the right to appeal the District Court's order. See, e.g., Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).
SO ORDERED.