Opinion
21-CV-10378 (PAE) (VF)
11-28-2022
PAULINE EVANS, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION LINCOLN, Defendants.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, MAGISTRATE JUDGE
Plaintiff Pauline Evans moves pursuant to Federal Rule of Civil Procedure 55 for default judgment against Defendants New York City Health and Hospitals Corporation and New York City Health and Hospitals Corporation Lincoln (“Lincoln Hospital”). ECF No. 17. Defendants, who appeared after Plaintiff's motion was filed, oppose the motion. ECF Nos. 25, 27. For the reasons that follow, I recommend that the motion for default judgment be DENIED.
BACKGROUND
Plaintiff, proceeding pro se, filed her complaint on December 6, 2021. See ECF No. 1, Complaint (“Compl.”). Plaintiff is a former Head Nurse at Lincoln Hospital, who was terminated on November 1, 2021, for failure to comply with the hospital's mandatory COVID-19 vaccination policy for employees. Id. ¶¶ 9, 13, 19-21, 34-37. Plaintiff alleges that Defendants' COVID-19 vaccination policy violated: (1) her right to refuse unwanted and medically unnecessary medical care; (2) her Fourteenth Amendment Due Process rights; and (3) the Supremacy Clause of the federal Constitution. Id. ¶¶ 46-73.
Although Plaintiff filed her complaint on December 6, 2021, Plaintiff did not submit proof demonstrating that she had served the Compliant on Defendants within the 90-day period applicable for service. Consequently, on March 23, 2022, the Court issued an order to show cause, instructing Plaintiff to submit good cause for her failure to serve the summons and complaint on Defendants. ECF No. 3. The Court ordered Plaintiff to respond by April 6, 2022. Id. Not having heard from Plaintiff, on April 11, 2022, the Court dismissed the case without prejudice for failure to prosecute. ECF No. 4.
On April 22, 2022, Plaintiff moved to reopen her case pursuant to Federal Rule of Civil Procedure 60(b)(1), and also filed proof of service of the summons and complaint as to Lincoln Hospital. ECF Nos. 5-6. On April 25, 2022, the Court granted the motion and reopened the case. ECF No. 7. On May 19, 2022, Plaintiff filed proof of service of the complaint as to both Defendants. ECF No. 8. Lincoln Hospital's deadline to answer or otherwise respond to the complaint was April 27, 2022. See ECF No. 10. New York City Health and Hospitals Corporation's deadline to answer or otherwise respond to the complaint was June 9, 2022. Id. Defendants did not answer or otherwise appear in the case.
On July 11, 2022, the Court ordered Plaintiff to show cause why the case should not be dismissed for failure to prosecute, given that Plaintiff had not filed a motion for default judgment against Defendants or obtained a certificate of default. ECF No. 10. On July 25, 2022, Plaintiff filed the instant motion for default judgment against Defendants. ECF No. 17. Plaintiff then filed a proposed Certificate of Default as to Defendants on July 28, 2022. ECF No. 22. That same day, the Clerk entered the Certificate of Default. ECF No. 23.
On August 3, 2022, an attorney for the New York City Law Department filed a notice of appearance on behalf of Defendants. ECF No. 25. Defendants opposed the motion for default judgment on August 17, 2022. ECF No. 27. Plaintiff filed a reply on August 24, 2022. ECF No. 31. On November 2, 2022, the instant motion was referred to the undersigned for a report and recommendation as to whether a default judgment should be entered. ECF No. 33.
LEGAL STANDARD
Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen a party against whom a judgment . . . is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). However, after such default is entered, “[t]he court may set aside an entry of default for good cause.” Fed.R.Civ.P. 55(c); see also Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981) (explaining that “defendant has an opportunity to seek to have the default set aside” under Rule 55(c)). “Where, as here, the clerk has entered a notation of default, but a default judgment has not yet been rendered, the Court applies the ‘good cause' standard set forth in Rule 55(c).” Team Kasa, LLC v. Humphrey, No. 17-CV-1074 (JS) (AKT), 2018 WL 1867117, at *2 (E.D.N.Y. Jan. 24, 2018), report and recommendation adopted, 2018 WL 1083958 (E.D.N.Y. Feb. 26, 2018) (citations omitted).
In determining whether “good cause” exists, the Court considers three criteria: “(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993); see also Holzman Fabian Diamonds Ltd. v. R & E Diamonds LLC, No. 17-CV-9489 (AJN), 2019 WL 1099944, at *1 (S.D.N.Y. Mar. 8, 2019); McInnis USA Inc. v. Aggrecem Mechanical, LLC, No. 21-CV-1253 (MKV), 2022 WL 3028980, at *1 (S.D.N.Y. Aug. 1, 2022). These criteria must be applied in light of the Second Circuit's strong “preference for resolving disputes on the merits.” Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1077 (2d Cir.1995) (citing Enron Oil Corp., 10 F.3d at 95); accord Meehan, 652 F.2d at 277 (“Defaults are not favored . . . and doubts are to be resolved in favor of a trial on the merits.”) (citations omitted). “[W]hen doubt exists as to whether a default should be . . . vacated, the doubt should be resolved in favor of the defaulting party.” Enron Oil Corp., 10 F.3d at 96. For that reason, “good cause” is “construed generously.” Id. Finally, “when determining whether to grant a default judgment, the Court is guided by the same factors which apply to a motion to set aside entry of a default.” See Krevat v. Burgers to Go, Inc., No. 13-CV-6258 (JS) (AKT), 2014 WL 4638844, at *5 (E.D.N.Y. Sept. 16, 2014).
DISCUSSION
In the instant motion, Plaintiff moved for default judgment on the ground that Defendants had failed to appear. ECF No. 17. When Defendants did appear to oppose default judgment, Plaintiff argued that Defendants exhibited “inexcusable dilatory conduct” by “refus[ing]” to appear, despite Defendants' “resources to respond” to the complaint. ECF No. 31. In response, Defendants argue that they did not act willfully, Plaintiff has not been prejudiced, and they have a meritorious defense to the claims in the complaint. ECF No. 27. For the reasons explained below, an evaluation of all the relevant factors favors denying Plaintiff's motion for default judgment and vacating the certificate of default.
A. Defendants' default was not willful.
“[W]illfulness requires something more than mere negligence, such as egregious or deliberate conduct, although the degree of negligence in precipitating a default is a relevant factor to be considered.” Loop Prod. v. Capital Connections LLC, 797 F.Supp.2d 338, 346 (S.D.N.Y. 2011) (quoting Odfjell Seachem A/S v. Continental De Petrols Et Invs. SA, 613 F.Supp.2d 497, 500 (S.D.N.Y. 2009)). A “court may find a default to have been willful where the conduct of counsel or the litigant was egregious and was not satisfactorily explained.” S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998); see also Vedder Price P.C. v. U.S. Capital Partners, LLC, No. 16-CV-6787 (JPO), 2017 WL 4180021, at *3 (S.D.N.Y. Sept. 20, 2017) (noting that “a defendant's inadvertent mistake may be excusable”).
Here, the default was not the result of egregious or deliberate conduct. Although Plaintiff commenced this action on December 6, 2021, it was not until May 19, 2022, that Plaintiff served the summons and complaint on both Defendants. To be sure, defense counsel did not file a notice of appearance until August 3, 2022, but Defendants have explained that their failure to respond to the complaint earlier was inadvertent and caused by “internal office miscommunication.” See ECF No. 27 at 4. Courts in this Circuit have consistently concluded that “episodes of such ‘law office failure,' even if accompanied by negligence and passivity by counsel, may not rise to the level of willfulness.” Pakter v. Janou Pakter, LLC, No. 16-CV-4288 (PAE), 2018 WL 1635239, at *4 (S.D.N.Y. Apr. 3, 2018) (finding delay not willful where failure to respond was “the result of [lawyer's] firm's inaccurate updating of his email address on the Court's ECF system when counsel changed law firms”); see also Nelson v. Gleason, No. 14-CV-870A, 2016 WL 6875857, at *3 (W.D.N.Y. Nov. 22, 2016) (finding delay not willful where belated answer was due to “law office failure, since counsel failed to note the deadline for answering”); Springs v. Clement, 202 F.R.D. 387, 394-95 (E.D.N.Y. 2001) (finding delay not willful where failure to respond was due to “miscommunication” within the Nassau County Attorney's Office, through which the case was never referred to an attorney); Hunt v. City of Auburn, No. 13-CV-1039 (GLS) (TWD), 2014 WL 6476169, at *2 (N.D.N.Y. Nov. 19, 2014) (finding delay not willful where clerk “failed to forward the complaint to corporation counsel” and “City's insurance company was never informed of the lawsuit”); Cruz v. TD Bank, N.A., No. 10-CV-8026 (PKC), 2015 WL 437393, at *3 (S.D.N.Y. Feb. 3, 2015) (finding delay not willful where failure to act was due to the press of other business deadlines). Moreover, within two weeks of defense counsel's appearance in this case, Defendants filed their opposition to the instant motion for default judgment. See ECF Nos. 25, 27-28.
Citing to 131 Main St. Assocs., Inc. v. Manko, No. 93-CV-800, 1998 WL 811875, at *2 (S.D.N.Y. Nov. 19, 1998), Plaintiff argues that Defendants' “dilatory conduct” is “inexcusable.” ECF No. 31 ¶ 12. But Plaintiff's reliance on that case is misplaced. There, the defendant's failure to appear lasted three years and after he did appear, the defendant “offer[ed] no excuse for this failure to appear.” 131 Main St., 1998 WL 811875, at *2. Here, by contrast, Defendants' failure to appear lasted only about two months, and their excuse for that delay-law office failure-is an excuse that has repeatedly been accepted by courts in this Circuit in concluding that a default was not willful. In short, Defendants' default was not willful and therefore this factor weighs in favor of denying the grant of a default judgment.
B. Plaintiff will not be prejudiced if the default is set aside.
“To be considered prejudicial, vacatur of a default must result in tangible harm beyond mere delay.” McInnis USA Inc., 2022 WL 3028980, at *2; see also PMJ Capital Corp. v. Bauco, No. 16-CV-6242 (AJN), 2018 WL 485973, at *6 (S.D.N.Y. Jan. 18, 2018). A plaintiff may demonstrate prejudice by showing “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) (internal quotation marks and citation omitted); accord Johnson v. New York Univ., 324 F.R.D. 65, 71 (S.D.N.Y. 2018), aff'd, 800 Fed.Appx. 18 (2d Cir. 2020); Team Kasa, LLC, 2018 WL 1867117, at *9; Kovalchik v. City of New York, No. 09-CV-4546 (RA), 2017 WL 3105873, at *5 (S.D.N.Y. July 21, 2017). “Prejudice may also exist if vacatur would ‘thwart [a] plaintiff's recovery or remedy.'” PMJ Capital Corp., 2018 WL 485973, at *6 (quoting New York v. Green, 420 F.3d 99, 110 (2d Cir. 2005)).
Although Plaintiff argues that she would be irreparably and unduly prejudiced if the default were vacated, see ECF No. 31 ¶ 13, Plaintiff does not point to any specific example of the prejudice she would suffer if the entry of default were vacated. Nor could she. Defendants appeared in the case six days after the Clerk of Court entered the Certificate of Default (see ECF Nos. 23, 25) and less than three months after they were both served with the summons and complaint (see ECF No. 8). See, e.g., Sea Hope Navigation Inc. v. Novel Commodities SA, 978 F.Supp.2d 333, 339 (S.D.N.Y. 2013) (explaining that “it would be almost impossible to establish such prejudice given that [defendant] filed an appearance with the Court less than one month after [plaintiff] filed its motion for a default judgment”); Hernandez v. Miller, No. 22-CV-6964 (VSB), 2022 WL 4387315, at *2 (S.D.N.Y. Sept. 22, 2022) (concluding that “minor delay” did not cause “cognizable prejudice” particularly because the case was in the “early stage in the litigation before discovery ha[d] commenced”). Given the early stages of the litigation, vacating the default will not prevent Plaintiff from engaging in discovery or pursuing her claims as she sees fit. In light of the strong “preference for resolving disputes on the merits,” Enron Oil Corp., 10 F.3d at 96, this factor too weighs in favor of denying the motion for default judgment.
C. Defendants may well raise a meritorious defense.
“A defendant seeking to vacate an entry of default must present some evidence beyond conclusory denials to support his defense. The test of such a defense is measured not by whether there is a likelihood that it will carry the day, but whether the evidence submitted, if proven at trial, would constitute a complete defense.” Enron Oil Corp., 10 F.3d at 98 (internal citations omitted). The threshold for satisfying this factor, however, is “low.” Gench v. HostGator.com LLC, No. 14-CV-3592 (RA) (GWG), 2015 WL 3757120, at *5 (S.D.N.Y. June 17, 2015)
(quoting MD Produce Corp. v. 231 Food Corp., 304 F.R.D. 107, 110 (E.D.N.Y. 2014)); see also Am. All. Ins. Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996) (defense “need not be ultimately persuasive at this stage” to satisfy this factor). Nonetheless, a defendant must still “‘articulate a defense with a degree of specificity which directly relates that defense to the allegations set forth in the plaintiff's pleadings and raises a serious question as to the validity of those allegations.'” FedEx TechConnect, Inc. v. OTI, Inc., No. 12-CV-1674 (RJS), 2013 WL 5405699, at *8 (S.D.N.Y. Sept. 23, 2013) (quoting Salomon v. 1498 Third Realty Corp., 148 F.R.D. 127, 130 (S.D.N.Y. 1993)) (additional quotation marks omitted).
Here, Plaintiff, a healthcare worker, challenges the Defendants' COVID-19 vaccination mandate, arguing that the mandate violated: (1) her right to refuse unwanted and medically unnecessary medical care; (2) her Fourteenth Amendment Due Process rights; and (3) the Supremacy Clause of the federal Constitution. See Compl. ¶¶ 46-73. Defendants intend to file a motion to dismiss these claims. See ECF No. 27 at 6.
To the extent Plaintiff is challenging the City's vaccination mandate, Defendants argue that such challenges have been repeatedly rejected by federal courts. See ECF No. 27 at 6; see also Marciano v. de Blasio, 589 F.Supp.3d 423, 426 (S.D.N.Y. 2022) (dismissing complaint for failure to state a claim where plaintiff challenged the COVID-19 vaccine mandate for City employees); Maniscalco v. New York City Dep't of Educ., 563 F.Supp.3d 33, 42 (E.D.N.Y. 2021), aff'd, No. 21-2343, 2021 WL 4814767 (2d Cir. Oct. 15, 2021) (denying preliminary injunction to enjoin City entities and officials from enacting and enforcing an order mandating COVID-19 vaccination for employees).
As to Plaintiff's bodily integrity and due process claims (see Compl. ¶¶ 46-56), Defendants argue that such claims are foreclosed by Jacobson v. Massachusetts, 197 U.S. 11 (1905). Id. at 12, 39 (finding that Massachusetts statute, enacted during a smallpox epidemic, which required individuals to be vaccinated or pay a $5 criminal fine, was not unconstitutional). Defendants' argument has support in recent cases addressing COVID-19 vaccination mandates. See, e.g., We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293 (2d Cir. 2021), opinion clarified, 17 F.4th 368 (2d Cir. 2021) (“Plaintiffs provide no basis for concluding that the vaccination requirement here, considerably narrower than the city-wide mandate in Jacobson, violates a fundamental constitutional right.”); Abadi v. City of New York, No. 21-CV-8071 (PAE), 2022 WL 347632, at *9 (S.D.N.Y. Feb. 4, 2022) (“It follows from Jacobson that an ordinance . . . imposing limits on the establishments that the non-vaccinated may enter during an ongoing pandemic, does not impermissibly infringe on [one's] bodily integrity.”).
Lastly, Defendants argue that Plaintiff's Supremacy Clause claim, in the context of a vaccination mandate (see Compl. ¶¶ 57-73), has also been rejected by courts. Defendants are correct. See Lloyd v. Sch. Bd. of Palm Beach Cnty., 570 F.Supp.3d 1165, 1175-76 (S.D. Fla. 2021) (discussing how the emergency use authorization provisions under the Federal Food, Drug, and Cosmetic Act can only be enforced by the federal government and do not create a private cause of action); see, e.g., We The Patriots USA, 17 F.4th at 293 (“[D]istrict court erred by finding that Plaintiffs are likely to succeed on their claim that [emergency mandatory vaccination requirement for employees] is preempted by Title VII and therefore violative of the Supremacy Clause”); Johnson v. Brown, 567 F.Supp.3d 1230, 1257 (D. Or. 2021) (noting that Plaintiffs have “not demonstrated a likelihood of success, or serious questions, on their Supremacy Clause claim,” in their challenge to a state-ordered COVID-19 vaccination mandate for certain employees).
In short, Defendants have meritorious defenses to Plaintiff's claims and thus this factor, like the other two, also weighs in favor of denying the motion for default judgment. I therefore recommend that Plaintiff's motion for default judgment be denied and that the certificate of default be vacated.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for default judgment should be DENIED and the Certificate of Default at ECF No. 23 should be vacated.
SO ORDERED.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Paul A. Engelmayer. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).