Opinion
Civil Action 22 Civ. 5120 (JLR) (SLC)
01-05-2024
ALINA DRANITCA, Plaintiff, v. ALLIED UNIVERSAL, WILLIAM TOMKINS, and PAWEL MACZUGA, Defendants.
HONORABLE JENNIFER L. ROCHON, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Alina Dranitca (“Dranitca”) brings this action asserting claims of sex discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”); the New York State Human Rights Law, N.Y. Exec. L. §§ 290, et seq. (the “NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq. (the “NYCHRL”) against Defendants Allied Universal (“Allied”), William Tomkins (“Tomkins”), and Pawel Maczuga (“Maczuga,” together with Allied and Tomkins, “Defendants”). (ECF No. 3 (the “Complaint”)). After Defendants failed to timely respond to the Complaint, the Clerk of the Court entered a certificate of default against them. (ECF No. 21). Before the Court is Dranitca's motion for entry of a default judgment. (ECF No. 26 (the “Motion”)). Defendants have now appeared, opposed the Motion, and requested that the certificate of default be vacated. (ECF No. 32). For the reasons set forth below, I respectfully recommend that that the Motion be DENIED and the certificate of default be vacated.
II. BACKGROUND
A. Factual Background
The following facts are taken from the Complaint and accepted as true for purposes of analyzing the Motion. See Acevedo v. Cool Power, LLC, No. 14 Civ. 253 (JS) (AKT), 2015 WL 1014392, at *2 (E.D.N.Y. Feb. 13, 2015), adopted by, 2015 WL 1014392 (E.D.N.Y. Mar. 9, 2015). Allied is a security and facility services company that employed Dranitca, a female, as a security guard at 16 West 19th Street in New York City (the “Jade Building” or “Jade”) beginning in November 2020. (ECF No. 3 ¶¶ 6, 9-11, 17). Allied employed Tomkins as a field supervisor and Maczuga as a manager, and both Tomkins and Maczuga had supervisory authority over Dranitca. (Id. ¶¶ 12-15).
Internal citations and quotation marks are omitted from case citations unless otherwise indicated.
Dranitca alleges that, starting in February 2021, Defendants discriminated against her based on her sex. (ECF No. 3 ¶¶ 17-20, 35). First, she claims that male workers were paid for a 16-hour training and paid time off, while she was not, despite multiple complaints to Maczuga and Tomkins. (Id. ¶¶ 21-23, 36-37). Second, Dranitca alleges that a co-worker made unwanted sexual advances toward her, and that Maczuga and Tomkins ignored her attempts to complain about the harassment. (Id. ¶¶ 24-41). Third, on May 10, 2021, Maczuga told Dranitca that “she did not have to come to work any more [sic] as she was terminated from work at the Jade Building,” but that “Defendants would try to find her a new job location and a different shift.” (Id. ¶ 42). Dranitca told Maczuga that she could only work evening shifts due to morning physical therapy appointments for a back condition, could not have a standing position, and could only work in Manhattan or upper Brooklyn. (Id. ¶ 43). The next day, three supervisors, including Maczuga, offered her a new morning shift in a standing position at a distant job site, which Dranitca could not accept due to her back condition. (Id. ¶ 44). Dranitca was told that another employee with dependents was given Dranitca's former position at the Jade Building, but Dranitca believes this was a pretext and her termination was retaliatory. (Id. ¶¶ 45-47).
On July 6, 2021, Dranitca filed a complaint with Allied's ethics and compliance organization, Convercent, but was told that Allied was no longer serviced by Convercent. (ECF No. 3 ¶ 50). In July 2021, Dranitca filed a complaint on Allied's hotline, but her complaint was not addressed. (Id. ¶ 51). On November 9, 2021, Dranitca filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”), asserting that her termination was discriminatory due to her sex and in retaliation for her complaints. (Id. ¶¶ 52-53).
B. Procedural Background
On June 17, 2022, Dranitca commenced this action by filing a complaint, which the Clerk of the Court rejected as deficient. (ECF No. 1; ECF min. entry dated June 21, 2022). More than two months later, on August 25, 2022, Dranitca correctly filed the Complaint (ECF No. 3) and requests for summonses, one which Dranitca had to refile to correct a typographical error. (ECF Nos. 4-6; 9). On August 26, 2022, the Clerk of the Court issued electronic summonses as to Allied and Maczuga, and on August 29, 2022, as to Tomkins. (ECF Nos. 7-8; 10). On September 6, 2022, Dranitca filed affidavits of service (the “Affidavits”), which reflect that on September 1, 2022, the summons and Complaint were served on each Defendant by hand delivery to Joseph Tuccio (“Tuccio”) at 123 William Street, 7th Floor, New York, New York (the “William Street Branch”), and on September 2, 2022, to the same address by mail, making Defendants' response to the Complaint due September 22, 2022. (ECF Nos. 11-13). On September 29, 2022, Dranitca filed a status letter reporting that Defendants had been served on September 1, 2022 but had not yet appeared. (ECF No. 15).
On October 3, 2022, the Honorable Jennifer L. Rochon issued an Order referring the action for mediation and setting an initial pretrial conference for January 17, 2023 (the “ICMC”). (ECF No. 16). On January 11, 2023, Defendants not having answered or appeared, Judge Rochon cancelled the ICMC and ordered Dranitca to file a motion for default judgment by January 31, 2023, warning that failure to timely file the Motion may result in dismissal for failure to prosecute. (ECF No. 17). On January 31, 2023, Dranitca filed a proposed certificate of default and affirmation in support, the latter of which had to be refiled. (ECF Nos. 18-20). On January 31, 2023, the Clerk of the Court entered a certificate of default against Defendants. (ECF No. 21).
On March 3, 2023, after Judge Rochon referred the Motion to the undersigned for a report and recommendation (ECF No. 23), the Court issued a scheduling order that required Dranitca to file, by April 5, 2023, the Motion, accompanied by proposed findings of fact and conclusions of law, supported by affidavit or evidentiary material. (ECF No. 24 (the “Default Order”)). The Court also ordered Defendants to respond to the Motion by April 26, 2023, warning them that failure to respond or contact the Court would result in the issuance of a report and recommendation based on Dranitca's submission alone, and ordered Dranitca to serve the Default Order on Defendants. (Id.)
On May 19, 2023, more than six weeks after the deadline in the Default Order, the Court issued an Order noting that Dranitca had not yet filed the Motion, but extended her time to do so to June 2, 2023, ordered Defendants to respond by June 23, 2023-with the same warning about the failure to respond-and ordered Dranitca to serve the order on Defendants and file proof of service. (ECF No. 25 (the “May 19 Order”)). On June 2, 2023, Dranitca filed the Motion- which is only two pages long and contains no case citations-accompanied by copies of the Complaint and Affidavits, a statement of damages (the “Damages Statement”),proposed default judgments, and her four-paragraph declaration (the “Declaration,” collectively, the “Damages Submission”)). (ECF Nos. 26; 26-1 - 26-7; 27). On June 5, 2023, Dranitca served the Motion and Damages Submission on Defendants by mail. (ECF No. 29).
In the Damages Statement, Dranitca seeks $250,000 in emotional distress damages, $112,000 in compensatory damages, and $26,000 in attorneys' fees. (ECF No. 26-4). No supporting documentation is attached.
On June 23, 2023, counsel filed notices of appearance on behalf of Allied and Tomkins (ECF Nos. 30-31), and an opposition to the Motion (ECF No. 32 (the “Opposition”)). Accompanying the Opposition was the Declaration of Scott Lorberbaum, Allied's Director of Human Resources (ECF No. 32-1 (the “Lorberbaum Declaration”)). Lorberbaum attests to Dranitca's dates and hours worked and rates of pay, that Jade requested that Dranitca be removed for performance issues, and that Allied investigated Dranitca's internal complaint and found her claims to be unsubstantiated “in part due to [her] refusal to cooperate.” (Id. ¶¶ 7-14). Lorberbaum further attests that Dranitca was not terminated but “voluntarily resigned from her employment because she failed to maintain contact with” Allied, and “remains eligible for rehire.” (Id. ¶¶ 20-22). Finally, Lorberbaum notes that Allied's Employee Handbook puts employees “on notice that, due to the nature of [its] business and client contracts, and the at-will nature of the employment relationship, employees may be transferred from one assignment to another or removed from any specific client account at any time.” (Id. ¶ 23). Also accompanying the Opposition is the Declaration of Andrew King, Associate Counsel in Allied's Legal Department. (ECF No. 32-2 (the “King Declaration”)). King attests that Allied employs “hundreds of thousands of individuals globally and maintains more than 200 branch offices in the United States.” (Id. ¶ 6). Based on his familiarity with Allied's Legal Department, King states that “[w]hen service of legal process is made upon [Allied] at a branch office, personnel at Allied['s] [] branch offices are trained to promptly forward all served documents to [the] Legal Department,” which “utilizes various systems to track when service of any legal process is received.” (Id. ¶¶ 78). King notes that while the Affidavits reflect that the Complaint was served by delivery to Tuccio at the William Street Branch on September 1, 2022, Tuccio left his employment at Allied on January 20, 2023, and Maczuga left on March 10, 2022, approximately six months before the purported service. (Id. ¶¶ 9-14). King asserts that, based on his review of the Legal Department's tracking system, the Legal Department did not become aware of service of the Complaint until June 7, 2023, when the William Street Branch received the Motion by mail and forwarded it to the Legal Department, at which time Allied and Tomkins “promptly retained outside legal counsel.” (Id. ¶¶ 15-17). King adds that Allied is continuing to investigate “the circumstances of the apparent service on September 1, 2022, including whether service was made and, if so, why it was not promptly delivered to the [] Legal Department,” and that any failure by Allied and Tomkins to respond “was not done knowingly, willfully, or with bad faith.” (Id. ¶¶ 18-19).
On July 7, 2023, after requesting and receiving an extension, Dranitca filed a reply in further support of the Motion. (ECF No. 35).
III. DISCUSSION
A. Legal Standard
A party seeking a default judgment must follow the two-step procedure set forth in Federal Rule of Civil Procedure 55. See Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 186-87 (2d Cir. 2015) (per curiam). First, under Rule 55(a), where a party has failed to plead or otherwise defend in an action, the Clerk of the Court must enter a certificate of default. See Fed.R.Civ.P. 55(a). Second, after entry of the default, if the party still fails to appear or move to set aside the default, the Court may enter a default judgment. See Fed.R.Civ.P. 55(b). Whether to enter a default judgment lies in the “sound discretion” of the trial court. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Because a default judgment is an “extreme sanction” that courts are to use as a tool of last resort, Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981) (per curiam), the district court must “carefully balance the concern of expeditiously adjudicating cases, on the one hand, against the responsibility of giving litigants a chance to be heard, on the other.” Lopez v. Emerald Staffing, Inc., No. 18 Civ. 2788 (SLC), 2020 WL 915821, at *4 (S.D.N.Y. Feb. 26, 2020).
A court may set aside, or vacate, a certificate of default or a default judgment under Rule 55(c) for “good cause.” Hassan v. Classic Food Inc., No. 20 Civ. 7549 (AT), 2021 WL 5597084, at *1 (S.D.N.Y. Nov. 30, 2021). “Because Rule 55(c) does not refer to a motion requirement, a court may set aside an entry of default sua sponte.” Miller v. Madison, No. 12 Civ. 874 (LEK) (CFH), 2013 WL 2181240, at *2 (N.D.N.Y. May 20, 2013). Courts consider three factors to determine whether “good cause” exists to vacate a certificate of default or a default judgment: “(1) whether the default was willful; (2) whether ignoring the default would prejudice the opposing party; and (3) whether the defaulting party has presented a meritorious defense.” J & J Sports Prods. Inc. v. 1400 Forest Ave. Rest. Corp., No. 13 Civ. 4299 (FB) (VMS), 2014 WL 4467774, at *4 (E.D.N.Y. Sept. 10, 2014) (citing Swarna v. Al-Awadi, 622 F.3d 123, 142 (2d Cir. 2010)). The standard for setting aside a certificate of default is more lenient than that for vacating a default judgment, but the factors remain the same. King v. Regen Med. Mgmt., LLC, No. 20 Civ. 6050 (AJN), 2021 WL 4066598, at *1 (S.D.N.Y. Sept. 7, 2021). No single factor is dispositive. Murray Eng'g, P.C. v. Windermere Prop. LLC, No. 12 Civ. 52 (JPO), 2013 WL 1809637, at *4 (S.D.N.Y. Apr. 30, 2013). In weighing the three factors, a court must keep in mind that defaults are disfavored, and the Second Circuit has expressed a “strong preference for resolving disputes on the merits.” New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). The court must resolve doubts in favor of the defaulting party. Enron Oil, 10 F.3d at 96. The decision to vacate a certificate of default under Rule 55(c) is “left to the sound discretion of a district court because it is in the best position to assess the individual circumstances of a given case and to evaluate the credibility and good faith of the parties.” Id. at 95.
B. Application
As a preliminary matter, although Defendants have not formally cross-moved to vacate the certificate of default, the Court treats their Opposition as making that request. See Acevedo, 2015 WL 1014392, at *7 (construing defendants' opposition to motion for default judgment as seeking vacatur of certificate of default); see also Toiny LLC v. Gill, No. 18 Civ. 40 (NGG) (VMS), 2019 WL 1403113, at *2 n.1 (E.D.N.Y. Mar. 28, 2019) (noting that “courts may vacate certificates of default sua sponte”). In addition, Dranitca has obtained a certificate of default against Defendants, but has not yet obtained a default judgment. Accordingly, the Court weighs the “good cause” factors under the more lenient standard and concludes that all three factors weigh in favor of vacatur.
1. Willfulness
A finding of willfulness requires “more than mere negligence,” more than “mere administrative or clerical error,” and more than “careless or negligent errors.” Am. Alliance Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 60-61 (2d Cir. 1996). “[T]he degree of negligence in precipitating a default,” however, “is a relevant factor to be considered . . . in determining whether a default judgment should be vacated.” Id. at 61. Thus, “[g]ross negligence can weigh against the party seeking relief from a default judgment, though it does not necessarily preclude relief.” Id. Willfulness may be found when there is “evidence of bad faith,” or the default arose “from egregious or deliberate conduct.” Id. The “relevant inquiry for determining willfulness is the defaulting party's actions after it became aware of the existence of the litigation or entry of default.” Ariston Props., LLC v. Messer (In re FKF3, LLC), 501 B.R. 491, 502 (S.D.N.Y. 2013).
The Court finds that, although the Affidavits appear to reflect proper service on Allied and Tomkins at the William Street Branch, see Fed.R.Civ.P. 4(e)(1); N.Y.C.P.L.R. § 308(2), the Court finds that their default was not willful. Allied has submitted the King Declaration, which asserts that Allied has a formal process for legal service received at branches to be forwarded to its Legal Department, a process that was, for an as-yet-undetermined reason, not followed here. (ECF No. 32-2 ¶¶ 8, 10, 15, 18). Less than three weeks after learning of this action when it received the Motion on June 7, 2023, Allied and Tomkins appeared through counsel and filed the Opposition. (ECF Nos. 30-32). These circumstances indicate that Allied and Tomkins “were merely negligent in failing to appear before entry of the” certificate of default, and did not act willfully. Kraljevich v. Courser Athletics, Inc., No. 21 Civ. 9168 (PKC), 2022 WL 3597760, at *3 (S.D.N.Y. Aug. 23, 2022) (finding that defendants who failed to provide forwarding mail address but appeared in action within three weeks of entry of default did not act willfully); Hassan, 2021 WL 5597084, at *2 (finding no willfulness where defendant's attorney did not receive complaint due to miscommunication and defendant “quickly made good-faith efforts” to resolve dispute); Vedder Price P.C. v. U.S. Cap. Ptrs., LLC, No. 16 Civ. 6787 (JPO), 2017 WL 4180021, at *3 (S.D.N.Y. Sept. 20, 2017) (finding no willfulness where defendant “took immediate action” by filing notice of appearance two weeks after entry of certificate of default); Holland v. James, No. 05 Civ. 5346 (KMW) (KNF), 2008 WL 3884354, at *3 (S.D.N.Y. Aug. 21, 2008) (finding no willfulness by defendant who acknowledged receiving summons and complaint but did not receive response to request for assistance from in-house counsel).
As to Maczuga, Defendants have shown that he was not-and for several months had not been-employed at Allied when Dranitca attempted service on September 1, 2022. (ECF No. 32-2 ¶ 14). Thus, neither the William Street Branch nor Allied were Maczuga's “actual place of business” on that date, and Dranitca's attempted service was not effective. N.Y.C.P.L.R. §§ 308(2), (6); see Kamiel v. Hai St. Kitchen & Co., No. 19 Civ. 5336 (PAE), 2022 WL 1591580, at *4 (S.D.N.Y. May 19, 2022) (finding that defendant was not properly served by delivery to business where he no longer worked). Because Maczuga has not yet been properly served, his default cannot be considered willful.
Accordingly, the Court finds that none of the Defendants' failure to timely appear was willful, and that this factor weighs in favor of vacatur.
2. Meritorious Defense
“A defense is meritorious if it is good at law so as to give the factfinder some determination to make.” Am. Alliance Ins., 92 F.3d at 61. “While a defendant must do more than offer conclusory assertions or dispute the amount of damages, the bar for such a showing is not high: a defendant's allegations are meritorious if they contain even a hint of a suggestion which, if proven at trial, would constitute a complete defense.” Carrasco v. Acropol Rest. Corp., No. 18 Civ. 7883 (OTW), 2019 WL 2325556, at *3 (S.D.N.Y. May 31, 2019); see Acevedo, 2015 WL 1014392, at *11 (explaining that “defaulting defendant must show some evidence beyond conclusory denials of the allegations set forth in the [c]omplaint”); Allen v. Norman, No. 08 Civ. 6041 (BSJ) (HBP), 2012 WL 3525584, at *6 (S.D.N.Y. July 23, 2012) (“whether a meritorious defense is presented[] requires only that the defendant meet a low threshold”), adopted by, 2012 WL 3526521 (S.D.N.Y. Aug. 15, 2012), aff'd 548 Fed.Appx. 25 (2d Cir. 2013) (summary order).
In the Opposition, Defendants advance several colorable affirmative defenses to Dranitca's claims. (ECF No. 32 at 12-17). As to Dranitca's sex discrimination claims, Defendants assert that, even if she can state a prima facie Title VII Claim,they will be able to show “a legitimate, non-discriminatory reason for removing her from [] Jade,” (id. at 13), i.e., that the Jade Building requested that she “be removed [] due to performance issues.” (ECF No. 32-1 ¶ 15). Defendants also reference the notice in the employee handbook that employees may be transferred between assignments and locations, and Dranitca's admission that she rejected the new position they offered her. (ECF Nos. 32 at 13-14; 32-1 ¶ 23; see ECF No. 3 ¶ 44). As to Dranitca's retaliation claims under Title VII, the NYSHRL, and NYCHRL, Defendants assert the affirmative defense that Dranitca did not experience “any adverse action that preceded her engagement in protected activity.” (ECF No. 32 at 16). And as to Dranitca's hostile work environment claims, Defendants anticipate that they will be able to show that they were not aware of the conduct of Dranitca's co-worker until after she was no longer working at the Jade Building, and, when they did become aware, investigated and found her allegations unsubstantiated, in part due to her non-cooperation. (ECF Nos. 32 at 17; 32-1 ¶¶ 16-18).
To state a prima facie claim for sex discrimination under Title VII, a plaintiff must allege: “(1) that she is a member of a protected class; (2) that she was qualified for employment in the position; (3) that she suffered an adverse employment action; and, in addition, has (4) some minimal evidence suggesting an inference that the employer acted with discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). Under the NYCHRL, a prima facie case requires only a showing of “differential treatment of any degree based on a discriminatory motive[,]” Jones-Cruz v. Rivera, No. 19 Civ. 6910 (PGG), 2022 WL 20437017, at *9 (S.D.N.Y. Oct. 27, 2022), and the “plaintiff need only demonstrate that discrimination was one of the motivating factors for the defendant's conduct, not that discrimination was the ‘but-for' cause.” Id. In 2019, the NYSHRL was amended such that “the standard for NYSHRL discrimination claims is closer to the standard of the NYCHRL.” Id. at *8 (quoting Edelman v. NYU Langone Health Sys., No. 21 Civ. 502 (LGS), 2022 WL 4537972, at *14 (S.D.N.Y. Sept. 28, 2022)). Following a prima facie showing, under each statute, the burden shifts to “the employer to come forward with its justification for the adverse employment action against the plaintiff.” Littlejohn, 795 F.3d at 307; see, e.g., Jackson-Lipscomb v. City of New York, No. 17 Civ. 10093 (ALC), 2022 WL 953048, at *4 (S.D.N.Y. Mar. 30, 2022) (noting that “Title VII, [] NYSHRL, and NYCHRL discrimination, retaliation, and hostile work environment claims” are subject to the same burden-shifting analysis).
To state a retaliation claim under these provisions, a plaintiff must “give plausible support” for four elements: “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Torre v. Charter Commc'ns, Inc., 493 F.Supp.3d 276, 288-89 (S.D.N.Y. 2020).
To state a hostile work environment claim under Title VII, a plaintiff must allege facts showing that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment.” Williams v. N.Y.C. Hous. Auth., 61 F.4th 55, 68 (2d Cir. 2023). The NYCHRL employs the treated-less-well standard. Stinson v. City Univ. of N.Y., No. 17 Civ. 3949 (KBF), 2018 WL 2727886, at *8 (S.D.N.Y. June 6, 2018). “[P]etty slights and trivial inconveniences” do not satisfy these standards. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 111 (2d Cir. 2013). The 2019 amendments to the NYSHRL eliminated the “severe and pervasive” requirement for hostile work environment claims, and brought the standard closer to the NYCHRL, requiring only that plaintiff establish that she was subject to “inferior terms, conditions or privileges of employment because of the individual's membership in one or more . . . protected categories.” Wheeler v. Praxair Surface Techs., Inc., No. 21 Civ. 1165 (PAE), 2023 WL 6282903, at *10 (S.D.N.Y. Sept. 26, 2023) (quoting N.Y. Exec. L. §§ 296(1)(h), 300).
The Court finds that Defendants' assertions in the Opposition, combined with the attestations in the Lorberbaum and King Declarations, meet the “low threshold to satisfy” the requirement that they “set forth a plausible meritorious defense” weighing in favor of vacatur. United States v. Carranza, No. 20 Civ. 5396 (GHW) (SDA), 2022 WL 17491892, at *4 (S.D.N.Y. Dec. 3, 2022); see Hassan, 2021 WL 5597084, at *2 (finding that allegations in defendant's affidavit were “sufficient to constitute a meritorious defense if proven true at trial”). This factor thus also weighs in favor of vacatur of the certificate of default.
3. Prejudice
The Second Circuit has emphasized that “delay standing alone does not establish prejudice” for purposes of analyzing the good cause factors. Enron Oil, 10 F.3d at 98. Instead, the party opposing vacatur must show “that delay will result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion.” Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983). Here, apart from quoting this standard, Dranitca merely disputes Defendants' assertion that she “will not be prejudiced if” the certificate of default is vacated. (ECF No. 35 at 11). Such a conclusory assertion is insufficient to demonstrate prejudice. See Carranza, 2022 WL 17491892, at *4 (finding that plaintiff failed to demonstrate prejudice); Vedder Price, 2017 WL 4180021, at *4 (finding no prejudice where plaintiff did not “make any allegations as to evidence, discovery, or fraud”). Furthermore, default judgment has not yet been entered, no discovery has commenced, and permitting Defendants to defend against Dranitca's claims “at this stage would not result in lost evidence or create new discovery difficulties.” Kraljevich, 2022 WL 3597760, at *4. Finally, it bears noting that Dranitca herself has not been particularly diligent in prosecuting this action, having taken two months to file a corrected Complaint, having failed to comply with certain of the Court's deadlines and service Orders, and having received two warnings about potential dismissal for failure to prosecute. (ECF Nos. 17; 25). In the absence of any specific, adequate indications of prejudice to Dranitca, this factor also weighs in favor of vacatur.
Accordingly, the Court finds that all three of the relevant factors weigh in favor of vacatur of the certificate of default and proceeding to litigation of the merits of Dranitca's claims and Defendants' defenses.
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that the Motion be DENIED and the certificate of default be vacated.
SO ORDERED * * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rochon.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).