Opinion
06 Civ. 13198 (JSR) (KNF).
November 1, 2007
REPORT AND RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE
INTRODUCTION
Ronald A. Nurse ("Nurse") brought this action as a pro se plaintiff against the City of New York ("NYC"), the New York City Human Resources Administration ("HRA"), and the New York City Administration for Children's Services ("ACS") (collectively, "defendants"). Nurse contends ACS did not hire him to fill job vacancies it had because of his race, gender, age, and criminal record, and alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as well as the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34.
NYC was served with a summons and complaint on January 17, 2007; its answer was due on February 6, 2007. Thereafter, the defendants requested and received from the Court an enlargement of time to respond to the complaint. The defendants were ordered to serve and file any responsive pleading on or before March 6, 2007. The parties agree that the defendants served the plaintiff with their answer on March 6, 2007. However, the defendants did not file their answer with the court until June 14, 2007 — more than three months late. As a result, the plaintiff moved for a default judgment, pursuant to Rule 55 of the Federal Rules of Civil Procedure, and requested $500 million in damages, plus pre-judgment interest, dating back to February 27, 2006.
BACKGROUND
The plaintiff attended a hiring pool at ACS' Personnel Department on February 27, 2006. At that time, Nurse was seeking employment either as a Child Protective Specialist or a Child Welfare Specialist. The plaintiff alleges that, from a prospective applicant pool of approximately 30, he was "the only Black Man at the ACS Hiring Poll [sic] and was the last to be called" for an interview. The plaintiff asserts further that, despite his score on a civil service examination administered for the job titles noted above, which was allegedly higher than the scores achieved by rival applicants, and despite his various academic qualifications, as well as his more than 15 years of work experience in Foster Care and Social Services, ACS did not hire him from this applicant pool because he has a "past criminal record, he is an African American male and he is 50 years old."
Nearly two months earlier, on January 1, 2006, ACS offered the plaintiff a provisional position, through the Welfare to Work Employment Program. Nurse contends he refused this employment offer based on a belief that he was qualified for a higher-paying civil service position. Thereafter, the plaintiff received notice, on March 1, 2006, that his public assistance benefits were to be discontinued on March 12, 2006, because, according to the notice, he "did not show up for an employment or work activity assignment" at ACS.
Thereafter, Nurse filed an administrative charge of discrimination. The Equal Employment Opportunity Commission ("EEOC") issued the plaintiff a Dismissal and Notice of Rights on August 14, 2006, and he commenced this action by filing a complaint with this court's Pro Se Office on October 20, 2006. NYC acknowledged receipt, by mail, of the summons and complaint on January 17, 2007. The defendants' response to the complaint was due on February 6, 2007. See FED. R. CIV. P. 12(a). The defendants requested, in a letter dated February 2, 2007, that the Court enlarge the time for them to respond to the complaint, from February 6, 2007, to March 19, 2007. On that same date, the Court granted the request, with the proviso that "[o]n or before March 6, 2007, the defendants shall serve and file their answer or move with respect to the complaint." (emphasis added).
While the defendants' answer was served on Nurse on March 6, 2007, it was not filed with the court until June 14, 2007 — more than three months after the deadline established by the Court's order. When, by May 4, 2007, the docket sheet maintained by the Clerk of Court for this action failed to note the filing of an answer by the defendants, the Court issued an order directing the plaintiff to review FED. R. CIV. P. 41 and 55, and, on or before May 25, 2007, to make such application to the court as he deemed appropriate. The defendants' failure to file an answer with the court timely was specifically noted in the Court's May 4, 2007 order. The plaintiff filed a motion seeking a judgment by default, pursuant to FED. R. CIV. P. 55, on June 5, 2007 — 11 days late.
The defendants do not claim to have filed their answer timely. They have ignored the matter. This is clear from a simple reading of their Memorandum of Law in Opposition to Plaintiff's Motion for a Default Judgment, which makes no mention of either their failure to file their answer with the court timely, or their failure to comply with that portion of the Court's February 2, 2007 order which directed them to file their answer with the court by a date certain.
DISCUSSION
Federal Rule of Civil Procedure 5(d) states: "All papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service. . . ." Federal courts interpret "reasonable time" liberally, in order to minimize technical objections over a paper that was timely served, but not timely filed. See Wright Miller, Federal Practice and Procedure: Civil 3d § 1152 (2002). In the case at bar, the defendants served their answer to the plaintiff's complaint timely, in accordance with the Court's February 2, 2007 order. However, the defendants failed to file their answer with the Clerk of Court until approximately three months had elapsed from the date on which the answer had to be filed, by dint of the Court's February 2, 2007 order. The defendants' dilatory approach to their filing obligation engendered the instant motion for a judgment by default.
Granting a judgment by default is an act left to a court's discretion. However, it is generally a disfavored course of conduct and is typically undertaken as a last resort. See Katz v. Morgenthau, 709 F. Supp. 1219, 1225 (S.D.N.Y. 1989) (reversed in part on other grounds). See also Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981) ("Defaults are not favored. . . ."). A judgment by default is the most severe sanction a court may apply. See Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995). Its use "must be tempered by the careful exercise of judicial discretion to assure that its imposition is merited." Trans World Airlines v. Hughes, 332 F.2d 602, 614 (2d Cir. 1964).
FED. R. CIV. P. 55 provides for entry of a judgment by default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules." FED. R. CIV. P. 55(a). However, before a party that has made a motion for entry of a judgment by default can obtain that relief, the movant must follow a two-step process. "First, FED. R. CIV. P. 55(a) requires the clerk to enter the default of a party who fails to plead or otherwise defend as required by the Federal Rules of Civil Procedure. The party seeking entry of default must show by affidavit or otherwise that entry of default is appropriate." Thomas v. Sclavo, No. 94 Civ. 1568, 1998 WL 51861, at *2 (N.D.N.Y. Feb. 4, 1998) (citing FED. R. CIV. P. 55[a]); see also Local Civil Rule 55.1 of this court. Upon issuance of the clerk's certificate of default, the moving party may then request that the clerk enter a default judgment, "if the claim to which no response had been made only [seeks] payment of a sum certain, and does not include a request for attorney's fees or other substantive relief. . . ." Local Civil Rule 55.2(a) of this court. "In all other cases the party seeking a judgment by default shall apply to the court as described in Federal Rule of Civil Procedure 55(b)(2), and shall append to the application (1) the clerk's certificate of default, (2) a copy of the claim to which no response has been made, and (3) a proposed form of default judgment." Local Civil Rule 55.2(b) of this court.
Nurse has not complied with FED. R. CIV. P. 55 and Local Civil Rule 55.1 and 55.2 of this court. For example, absent from the submissions Nurse made in support of his motion are the certificate of the Clerk of Court, noting the defendants' default, and a proposed form of default judgment. These deficiencies alone would warrant the court in denying the motion for a judgment by default.
As noted above, the defendants met their obligation to serve the plaintiff with a responsive pleading within the time fixed by the Court. However, by filing their answer approximately three months after the date on which it was required to be filed, the defendants violated an order of the Court. In addition, FED. R. CIV. P. 5(d) obligated the defendants to file their answer within a "reasonable time after service" was effected. Filing a document within four to six days after it is served has been found to satisfy the "reasonable time" requirement. See Clavbrook Drilling Co. v. Divanco. Inc., 336 F.2d 697, 700 (10th Cir. 1964); Katz, 709 F. Supp. at 1226. Filing a document three months after it has been served does not satisfy the "reasonable time" requirement.See Palmquist v. Conseco Medical Ins. Co., 128 F. Supp. 2d 618, 622 (D.S.D. 2000) (amended complaint not filed two months after served "wholly unreasonable").
The Court is mindful of the strong preference expressed repeatedly by the Second Circuit Court of Appeals that cases be resolved on the merits and not via default. See Cody, 59 F.3d at 15. Therefore, notwithstanding the defendants' failure to comply with the Court's order and FED. R. CIV. P. 5(d), in the circumstance of the instant case, where service of the answer was effected timely, and the plaintiff has not shown he has been prejudiced by the late filing of the answer, the Court finds that granting the plaintiff's motion for judgment by default would not be an appropriate exercise of the court's discretion.
RECOMMENDATION
For the reasons set forth above, the Court recommends that the plaintiff's motion for judgment by default be denied.