Opinion
01 Civ. 9781 (RWS)
October 22, 2002
MEMORANDUM OPINION
Pro se defendant Anthony Esposito ("Esposito") has moved pursuant to Rule 55(c) of the Federal Rules of Civil Procedure to vacate the entry of default judgment sought by plaintiff King Vision Pay Per View ("King Vision") against him.
On May 6, 2002, King Vision moved for the entry of default judgment against Esposito. The motion was granted on May 29, 2002, because no opposition had been filed, and a default judgment was entered in the amount of $11, 218.33.
By letter dated June 7, 2002, Esposito moved to reopen the default. The motion was denied in an order dated June 19, 2002. However, in light of Esposito's pro se status, he was given the opportunity to renew the motion. The order directed that the instant motion be fully submitted by August 7, 2002.
Esposito complied with the Court's order and renewed his motion on July 9, 2002. King Vision did not reply in Opposition in a timely manner. In fact, King Vision did not contact the Court at all until it had been notified after the passing of the August 7, 2002 submission date that the Court had not received its papers. After such notification, King Vision sought three different continuances. It finally replied on September 4, 2002, and the motion was considered fully submitted at that time.
In order to vacate the entry of the default judgment, Esposito must show, pursuant to Federal Rule of Civil Procedure 55(c), "good cause." Fed.R.Civ.P. 55(c). Consideration of "good cause" under the Rule requires consideration of at least three factors: (1) whether the default was willful; (2) whether the defendant has a meritorious defense; and (3) the level of prejudice that may occur to the nondefaulting party if relief is granted. Wagstaff-El v. Carlton Press Co., 913 F.2d 56, 57 (2d Cir. 1990). As to the second factor, a party must do more than express a general denial; it "must support its general denials with some underlying facts." Id. at 320-21.
Esposito has fulfilled the above requirements. He has shown that the default was not willful. He did not appear at the May 29, 2002 hearing of the default motion because he was told that he did not have to appear. Yet he did not realize that he needed to oppose King Vision's complaint and its motion for default judgment. Given his pro se status, this' is sufficient to constitute a lack of willful default. In the future, however, Esposito cannot rely on his lack of knowledge. If he does not answer the complaint, or fails to oppose in writing a motion of King Vision, such failure will be considered willful.
It is the Court's practice that pro se parties do not typically have to appear at oral arguments. That does not mean that they do not have to oppose the motion on paper. Apparently, Esposito was not aware that he had to oppose the default judgment in writing or appear on May 29, 2002 to explain why he had not.
Second, Esposito has presented a potentially meritorious defense. He claims that he does not own the club where the alleged cable piracy took place, and that the owner of the club, in any case, subscribes to a different cable system. Either of these are potentially meritorious defenses. While King Vision argues about the weight of such defenses, it at most raises a material issue of fact, and that is an inappropriate question for the purposes of deciding a motion to vacate a default judgment.
Finally, while King Vision claims that it will suffer grave prejudice if the default is vacated, such claim is belied by the delay in responding to Esposito's motion. King Vision did not comply with this Court's order to respond to Esposito's motion prior to August 7, 2002, and — after receiving notification of their failure to do so — proceeded to seek three continuances. These are not the actions of a party who fears prejudice absent the quick resolution of a matter.
In light of the foregoing, Esposito's motion to vacate the default judgment is granted. The parties shall appear for a preliminary conference on November 19, 2002 at 4:30 p.m.