Opinion
No. 04 Civ. 7103 (KMW) (DFE).
August 8, 2005
MEMORANDUM AND ORDER
1. After receiving Mr. Schulman's July 29 letter and Mr. Osborn's August 2 letter, I held a telephone conference with Mr. McNally and Mr. Osborn on August 8, and I made the following statements and rulings.
2. I held a settlement conference on March 16, and several follow-up telephone calls through March 23; the parties failed to reach a settlement, but were going to continue negotiations on their own. On June 14, defense counsel wrote to Judge Wood seeking permission to file a motion to dismiss; Judge Wood did not act on that letter, but her permission is not required for a motion in lieu of an answer.
3. I was not aware of that letter, and I was not focusing on the fact that the parties had ceased stipulating to extending defendant's time to move or answer with respect to the amended complaint. But I did sense that the parties were not going to settle and that the case needed a scheduling order. On July 14 and 15, at my direction, my law clerks telephoned Mr. McNally, faxed him a blank scheduling order, and told him to consult with defense counsel about what dates should be filled in. On July 19, Mr. McNally forwarded the blank scheduling order to defense counsel along with an e-mail that said that he was available to discuss it on July 21. However, Mr. Schulman's July 29 letter informs me that, on some unidentified subsequent date:
A colleague in my office, Derek McNally, called defendants' counsel, to specifically advise that we would not enter into the usual scheduling order with them regarding discovery and the like, precisely because defendants were in default,. . . .
In response to that advice of default, defendants' counsel stated that they still were of the mind to file their motion to dismiss certain claims in the complaint. Counsel then requested an extension until August 24 for such putative filing. We expressly declined to agree to any formal or informal extension of time, or to forgive defendants' nine-month long default.
4. The docket sheet shows the following. On July 27, plaintiff's counsel filed a certificate that the amended complaint had been served back in October 2004. On July 28, plaintiff's counsel requested the Clerk's Office to certify that the defendants had not filed an answer or otherwise moved. Although not yet shown on the docket sheet, a deputy clerk did sign the clerk's certificate on July 29.
5. There is a strong policy to have cases decided on the merits rather than on default. In the above circumstances, I will vacate the clerk's certificate of default provided that the defendants serve and file an answer, or motion in lieu of an answer, by August 26, 2005. I enclose a Scheduling Order with the dates I discussed in my August 8 telephone conference.