Opinion
98 Civ. 9154 (LAK).
March 13, 2000.
ORDER
This automobile negligence case appears to have been instituted in state court in 1998 to recover damages allegedly arising by reason of a 1996 accident. It was removed to this Court on December 29, 1998.
The Court held a pretrial conference on March 29, 1999 which plaintiff's counsel, to whom notice of the conference was sent by mail on February 9, 1999, did not attend. The Court dismissed the action for failure to prosecute on March 30, 1999. Plaintiff now moves to vacate the judgment and to restore the case to the calendar. Counsel claims that he did not receive advance notice of the conference and that defendant's counsel telephoned him from the courthouse on the day of the conference and said he would try to obtain an adjournment.
The Court assumes the truth of plaintiff's assertions — that counsel received no advance notice of the conference and that his adversary told him on March 29 (counsel erroneously states March 9) that he would try to get the conference adjourned. Nevertheless, judgment was entered against plaintiff on March 30, 1999 following which plaintiff's counsel waited until February 14, 2000 before moving to vacate the default. No explanation for that delay is offered. Indeed, it is especially egregious in view of the fact that the so-called affidavit of merits of the plaintiff filed in support of this motion was sworn to on April 6, 1999. Thus, plaintiff's counsel knew no later than April 6, 1999 that the case had been dismissed for lack of prosecution and then waited more than ten full months before moving to reinstate it.
"[C]ourts generally examine three criteria to determine whether to vacate a judgment: `(1) whether the default was willful; (2) whether defendant has a meritorious defense; and (3) the level of prejudice that may occur to the non-defaulting party if relief is granted.'" American Alliance Insurance Co. v. Eagle Insurance Co., 92 F.3d 57, 59 (2d Cir. 1996) (quoting Davis v. Musler, 713 F.2d 907, 915 (2d Cir. 1983)).
In this case, given the assumption that plaintiff's counsel did not have advance notice of the conference, the default was not willful. But plaintiff does not fare so well with the other two prongs of the standard.
"A defense is meritorious if it is good at law so as to give the factfinder some determination to make." Id. at 61 (quoting Anilina Fabrique de Colorants v. Aakash Chemicals and Dyestuffs, Inc., 856 F.2d 873, 879 (7th Cir. 1988)). By parity of reasoning, a claim is meritorious if there is enough there to warrant judicial determination, certainly not a difficult threshold to cross. Here, however, plaintiff simply has filed a conclusory, four sentence affidavit, stating in relevant part only that "I have a good and meritorious cause of action in that I was seriously injured on September 4, 1996, due to the negligence of the defendants." It sheds no light at all on the behavior that plaintiff characterizes as negligent. Moreover, while the verified complaint in ordinary circumstances appropriately would be considered in determining the merit of plaintiff's case, this one is not.
The complaint in this action obviously is a word processing form into which counsel has inserted the date and location of the alleged accident where blanks were provided for that information. (Paragraph Third) It plainly is a generic document intended for use in automobile accident cases generally, as it contains language such as this: "The defendant(s) was (were) negligent in . . .," thus demonstrating that it was not even crafted to the fact that this is a two defendant case. It also refers to plaintiff's employment as "his (her) employment," thus showing that the complaint was not even tailored to the extent of making it fit the plaintiff's gender. And while plaintiff in paragraph fourth claims that she was struck in the rear while stopped, the complaint elsewhere alleges that "defendant(s)" were negligent in, inter alia, failing to yield the right of way, an allegation that manifestly is inconsistent with the notion that plaintiff's vehicle was struck from behind while stopped. Thus, there is very little basis here on which to make a reasoned determination whether plaintiff has a meritorious claim, even given the low threshold by which that is governed.
Next, there is every reason to believe that plaintiff's delay has prejudiced the defendant. This is an action about a 1996 accident involving an out-of-state rental vehicle. The case was not even filed until 1998, and plaintiff has let almost a full year go by after learning of the default judgment without seeking to reopen the case. The likelihood of prejudice in this circumstances is substantial.
Finally, plaintiff's lengthy delay between the March 30, 1999 default and the February 14, 2000 motion to vacate is significant for another reason. Although plaintiff does not expressly state the legal basis for the motion, it rests on Fed.R.Civ.P. 60(b)(1), which permits relief from a judgment entered as the result of mistake, inadvertence or surprise. But Rule 60(b) requires in all events that such a motion "be made within a reasonable time." The determination whether the time has been reasonable requires consideration not only of possible prejudice to the other side, but also of whether "the moving party had some good reason for [its] failure to take appropriate action sooner." 11 Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 2866, at 383 (1995). Moreover, "[a]lthough the fact that a motion was made barely within the one-year time limit gives the court the power to entertain it, as the delay in making the motion approaches one year there should be a corresponding increase in the burden that must be carried to show that the delay was `reasonable.'" Amoco Overseas Oil Co. v. Compagnie Nationale Algerienne de Navigation, 605 F.2d 648, 656 (2d Cir. 1979).
Here, plaintiff knew of the default no later than April 6, 1999, the date on which he procured his client's signature on the "affidavit of merits." He then waited over ten months before filing the motion. He offers no excuse for having done so.
In all the circumstances, plaintiff's motion to vacate the judgment is denied.
SO ORDERED.