United States District Court, D. Connecticut
ORDER RE STATUS OF DEFAULTED DEFENDANTS
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
case at bar, Plaintiff sues various federal and state
agencies and officials to void the decision by the Federal
Emergency Management Agency ("FEMA") in July 2018
to terminate previously awarded Hazard Mitigation Grant
Program ("HMGP") funding for the elevation of the
lowest living area of his raised-ranch slab-on-grade
residence located in Westport, Connecticut. Doc. 1, ¶ 1.
At present, Plaintiff has moved for default judgment against
four defendants pursuant to Federal Rule of Civil Procedure
Rule 55(b). These defendants include: Connecticut Department
of Emergency Services and Public Protection
("DESPP"), William J. Hackett, Gemma Fabris, and
Ken Dumais (herein "Defendants" or "defaulted
defendants"). Each of these defendants, a state agency
and state officials sued in their official capacities, failed
to appear or defend "within 21 days after being served
with the summons and complaint," Fed.R.Civ.P.
12(a)(1)(A)(i). Consequently, pursuant to Plaintiff's
motion for default, the Clerk of the Court entered default
against each of them under Rule 55(a), Fed.R.Civ.P. Since the
entry of these defaults, the defaulted defendants have both
appeared and filed a motion to dismiss the action.
See Doc. 40 ("Notice of Appearance" of
Terrence M. O'Neill, Assistant Attorney General) and Doc.
41 ("Motion to Dismiss" the Complaint under
Fed.R.Civ.P. 12(b)(1) and (b)(6)).
the defaulted defendants are hereby advised that although
they have now appeared and pled in this action, they remain
in default unless and until they move to open the default and
the Court grants that motion. Clearly, from their motion to
dismiss, it is evident that they believe that they have
meritorious defenses to Plaintiff's claims and intend to
vigorously assert these defenses. However, appearing and
pleading are not sufficient actions to nullify a default. A
party must move the Court to "set aside the default for
good cause" under Rule 55(c), Fed. R. Civ. P.
Standard to Set Aside Default under Rule 55(c), Fed. R. Civ.
55(c) specifies that the requisite basis to set aside default
is "good cause." Although the rule does not define
"good cause," the Second Circuit has stated that
"[i]n determining whether to set aside a party's
default, the district court should consider principally
'(1) whether the default was willful; (2) whether setting
aside the default would prejudice the adversary; and (3)
whether a meritorious defense is presented.'"
Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508,
514 (2d Cir. 2001) (quoting Enron Oil Corp. v.
Diakuhara, 10 F.3d 90, 96 (2d Cir.1993)). Additionally,
"[b]ecause there is a 'preference for resolving
disputes on the merits,' doubts 'should be resolved
in favor of the defaulting party.'" Id.
(quoting Enron Oil Corp., 10 F.3d at 96). See
also Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.1981)
(per curiam) (In general, "[d]efaults are not favored,
particularly when the case presents issues of fact, and
doubts are to be resolved in favor of a trial on the
merits.") (citing, inter alia, Klapprott v.
United States, 335 U.S. 601');">335 U.S. 601, [615 ] (1949)). "While
courts are entitled to enforce compliance with the time
limits of the Rules by various means," default is viewed
as an "extreme sanction," one to be treated as
"a weapon of last, rather than first, resort."
Meehan, 652 F.2d at 277 (citations omitted).
determining whether to set aside a default, the court also
considers such equitable factors as "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." Enron Oil Corp., 10
F.3d at 96. Moreover, in reaching a conclusion regarding
"good cause," the court must construe the criteria
"generously" as a "reflection of [the Second
Circuit's] oft-stated preference for resolving disputes
on the merits." Id. at 95 -96 (citing,
inter alia, Meehan, 652 F.2d at 277).
addition, "[a] motion to vacate a default is subject to
a less rigorous standard than applies to a Rule 60(b) motion
to vacate a default judgment." Am. Alliance Ins.
Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 59 (2d
Cir.1996) (citing Meehan, 652 F.2d at 276). See
also State Farm Mut. Auto. Ins. Co. v. Cohan, 409
Fed.Appx. 453, 456 (2d Cir. 2011) (Second Circuit expressly
"analyzed [defendants'] claims under Rule
55(c)'s more forgiving standard for setting
aside an administrative default")(emphasis added);
New York v. Green, 420 F.3d 99, 109 (2d Cir. 2005)
(Under Rule 55(c), "a default may be vacated for
'good cause shown,' a less rigorous standard than
applies under Rule 60(b)."). When a district court has
erroneously applied the more vigorous standard of Rule 60(b)
to consider vacating a default, versus a default judgment,
the Second Circuit has held that such an error "requires
reversal." Meehan, 652 F.2d at 276.
the matter of whether to grant relief from the entry of a
default 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." Powerserve
Int'l, Inc., 239 F.3d at 514 (citation omitted).
See also State Farm Mut. Auto. Ins. Co., 409
Fed.Appx. at 455 (same). Therefore, the Second Circuit will
"not reverse the denial of such a motion except for
abuse of discretion." Powerserve Int'l,
Inc., 239 F.3d at 514 (citations omitted).
Status of Defaulted Defendants
discussed supra, the four defaulted defendants have
appeared and moved to dismiss the Complaint, perhaps with the
erroneous belief that such actions have rectified their
defaults. However, their defaults remain in effect. In the
interest of justice, given the Second Circuit's
longstanding disfavor for defaults, and in light of their
appearance through Attorney O'Neill and their pending
motion to dismiss, the Court will grant these defendants a
brief period to move to set aside their defaults before the
Court will proceed to rule on the pending motions. That way,
the defaulted defendants will have the opportunity to inform
the Court regarding their reason(s) for default, as well to
present facts regarding any willfulness of default, possible
resulting prejudice to Plaintiff, and meritorious defenses to
Plaintiff's claims. See Powerserve Int'l,
Inc., 239 F.3d at 514. The Court will then determine
whether said defaults may properly be set aside for
"good cause." If the defaults are vacated, the
Defendants will re-enter the action and the Court will
resolve their motion to dismiss. However, if the defaults
remain intact, the Court will adjudicate Plaintiff's
motion for default judgment.
foregoing reasons, the Court hereby ORDERS that if the
defaulted parties - DESPP, William Hackett, Gemma Fabris, and
Ken Dumais - wish to re-enter the case, they must move to set
aside their defaults under Rule 55(c), Fed. R. Civ. P., on or
before Friday, November 22, 2019. Plaintiff
may respond to any such motion within twenty-one (21) days
after it is filed; and the defaulted defendants may reply
within fourteen (14) days thereafter. D. Conn. L. Civ. R.
7(a)(2), 7(d). The briefing deadlines for Defendants'
"Motion to Dismiss" [Doc. 41] and Plaintiff's
"Motion for Default Judgment" [Doc. 43] are hereby
stayed. Once November 22 has expired or the
Court rules on Defendants' motion to set aside their
defaults, whichever is ...