United States District Court, D. Connecticut
ORDER ON MOTION TO OPEN DEFAULT JUDGMENT
R. Underhill, United States District Judge.
defendant, John Matava (“Matava”) seeks to open a
default judgment entered against him. For the reasons set
forth below, Matava's motion (Doc. No. 122) is
case arises from an April 2014 fire at Matava's home. Am.
Compl., Doc. No. 62 at ¶ 13. Plaintiff Emigrant Mortgage
Company, Inc. (“Emigrant”) initiated this action
in March 2016, but did not originally list Matava as a
defendant. Compl., Doc. No. 1. Emigrant filed an Amended
Complaint in August 2016 naming him as a defendant. Am.
Compl., Doc. No. 32. Matava filed a pro se appearance on
December 22, 2016 in which he listed his address as a P.O.
Box in Vernon, Connecticut. See Appearance, Doc. No.
47. Emigrant filed an Amended Complaint on March 3, 2017 in
which it alleges that at the time of the fire, Matava's
home was insured through Travelers Home and Marine Insurance
Company (“Travelers”) under a policy that
provided for payment to a mortgagee for losses. Am. Compl.,
Doc. No. 62 at ¶¶ 9-11. Emigrant was listed as a
mortgagee in the policy and was the servicer of the loan.
Id. at ¶¶ 12, 16. Emigrant alleges in its
complaint that Travelers issued a check for $207, 007.16 made
payable to Matava, Emigrant, and United Adjusters, but that
Emigrant never received the check or the funds. Id.
at ¶ 19-21. Emigrant alleges that United Adjusters
endorsed the check and Matava deposited the funds into his
bank account with Citizens Bank, which erroneously negotiated
the check with only one endorsement. Id. at ¶
22-26. Emigrant alleges two counts against Matava: Common Law
Conversion (Count Seven); and Statutory Theft in Violation of
Conn. Gen. Stat. § 52-564 (Count Eight). Id. at
13, 2017, Matava filed a motion seeking an order directing
the parties to send him copies of the pleadings as he alleged
he had not received any filings beyond the Complaint and
court orders. Mot. for Order, Doc. No. 88. Matava's
motion was granted and the parties were directed to mail
copies of their filings to him. Order, doc. No. 89. Further,
Matava was directed to respond to the operative complaint
within twenty-one days of it being served on him.
Id. On December 27, 2017, Emigrant filed a Motion
for Default Entry 55(a) for Failure to Plead against Matava
showing that the operative complaint, in addition to other
filings, were served on Matava on July 31,
2017. Mot. for Def, Doc. No. 107. Thereafter,
the motion was granted. Order, Doc. No. 111. On February 9,
2018, Emigrant moved for a Default Judgment against Matava,
which was granted five months later. See Mot. for
Def. Entry, Doc. No. 112; Order, Doc. No. 113. Throughout
that time, Matava did not submit any filings. A hearing in
damages was scheduled for August 30, 2018, but a Motion to
Continue by Emigrant was granted and the hearing was
rescheduled to a later date. See Doc. Nos. 114, 115,
116. On August 30, I held a conference call with Matava and
Emigrant's attorney. Doc. No. 119. At the conference,
Matava alleged that his address had changed and he had not
received any of the recent filings and expressed his desire
to file a motion to open the judgment against him. I gave him
the opportunity to do so and sent him copies of the recent
filings to his new address, and he filed his Motion to Open
on September 18, 2018, to which Emigrant objected on November
2. See Mot. to Open, Doc. No. 122; Opp. to Mot. to
Open, Doc. No. 124.
to open default judgments “are left to the sound
discretion of a district court.” Enron Oil Corp. v.
Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Federal Rule
of Civil Procedure 55(c) provides that an entry of default
judgment may be set aside pursuant to Rule 60(b).
Fed.R.Civ.P. 55(c). Federal Rule of Civil Procedure 60(b)
provides: “On a motion and just terms, the court may
relieve a party ... from a final
judgment... for the following reasons:
... mistake, inadvertence, surprise, or
excusable neglect; ... [or] any other reason
that justifies relief.” Fed.R.Civ.P. 60(b). The Rules
also provide that such a motion must be made “within a
reasonable time” which, for purposes of “mistake,
inadvertence, surprise, or excusable neglect” is within
a year from the entry of judgment. Fed.R.Civ.P. 60(c)(1). In
order to determine whether a default judgment should be set
aside, courts look to the following factors: “(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,
10 F.3d at 96. Further, courts take into consideration
“whether the failure to follow a rule of procedure was
a mistake made in good faith and whether the entry of default
would bring about a harsh or unfair result.”
Id. Because Matava is appearing pro se,
“concerns regarding the protection of [his] rights are
heightened” and he is afforded “extra leeway in
meeting the procedural rules governing litigation.”
Id. The Second Circuit has advised that district
courts should “set aside the entry of default freely
when the defaulting party is appearing pro se.”
motion, Matava alleges that he had not received any notices
or filings because his P.O. Box was closed due to nonpayment
and he “does not know what happened to all mail that
was sent” there. Mot. to Open, Doc. No. 122 at 1.
Further, Matava alleges that he is “homeless and has no
permanent residence” but provided an updated mailing
address to a relative's house in Winsted, Connecticut.
Id. at 2. He also argues that he “has a good
defense to the complaint, and wishes to be heard” and
argues that Emigrant “has no standing to any funds or
property.” Id. at 2-3. He may well be right
about his “good defense” as he claims that the
money he received from Travelers was used to rebuild the
subject property, which was in foreclosure. If so, it is
beneficial to have a renovated house going through
foreclosure rather than one that had suffered fire damage,
and, therefore, Emigrant, as a mortgagee of the property,
received value from the money paid out by Travelers.
to the mandate from the Second Circuit regarding pro se
defendants, I will give Matava “extra leeway.”
Enron Oil, 10 F.3d at 96. There is nothing to
suggest that Matava willfully defaulted. On the contrary, it
seems as though his financial circumstances made it difficult
for him to comply with the required procedures; because he
could not pay for his P.O. Box and was homeless, there was a
period of time where he was not receiving the mail being sent
to him by Emigrant and the court. Accordingly, the
circumstances justify relief from the default, and I will not
impose a “harsh [and] unfair result” on the basis
of Matava's excusable neglect. Id. Because of
his circumstances, and because the Second Circuit mandates
that I “freely” set aside default judgments
against pro se defendants, Matava's Motion to Open the
Default Judgment (Doc. No. 122) is granted.
The Clerk shall vacate the judgment against Matava.
Emigrant also brought claims against
Travelers and Citizens Bank. See Am. Compl., Doc.
No. 62. The parties filed a joint motion to dismiss all
claims against Travelers and Citizens Bank, which was
granted, leaving Matava as the sole remaining defendant in
the case. See Joint Motion, Doc. No. 106; Order,
Doc. No. 108. Further, Emigrant filed a Motion to Amend the
Complaint, see Mot. to Am., Doc. No. 82, which was
denied as moot because “the proposed Second Amended
Complaint ... does not change any of the
allegations related to the remaining defendant, John
Matava.” Order, Doc. No. 109. Accordingly, the Amended
Complaint at Doc. No. 62 is the operative complaint.
 Emigrant had previously sought and
obtained a Motion for Default Entry 55(a) for Failure to
Plead with respect to an earlier version of the Complaint.
See Mot. for Def, ...