Opinion
18-CV-0496 (JPO) (KHP)
03-08-2023
DANIEL MOORE, Plaintiff, v. NYC HEALTH + HOSPITAL, et al., Defendants.
HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION FOR DEFAULT JUDGMENT
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
Before the Court for a Report and Recommendation is pro se Plaintiff's motion for a default judgment against Defendant Corrections Officer Jayvon Jones (“Defendant Jones”) (ECF No. 85). For the reasons stated below, I respectfully recommend Plaintiff's motion for an entry of default judgment be denied as moot.
On August 28, 2019, Plaintiff filed a Sixth Amended Complaint (“Complaint”) that named several defendants including Defendant Jones. On August 6, 2020, the Honorable J. Paul Oetken issued an Opinion and Order dismissing all claims except Plaintiff's claim that Defendant Jones was deliberately indifferent to Plaintiff's leg-related pain. See Moore v. City of New York, 2020 WL 4547223, at *2-3 (S.D.N.Y. Aug. 6, 2020). Defendant Jones was served with process at his home by a U.S. Marshall on March 23, 2021. (ECF No. 68.) The deadline for Defendant Jones to answer the Complaint was April 13, 2021, but he did not make an appearance or answer the Complaint by that date.
On September 16, 2021, Plaintiff requested permission to move for default against Defendant Jones, which the Court approved. (ECF No. 82.) On February 2, 2022, the Clerk of the Court issued a certificate of default as to Defendant Jones. (ECF No. 83.) On September 22, 2022, Plaintiff filed a letter motion requesting a default judgment and damages. (ECF No. 85.)
On December 20, 2022, Defendant Jones made an appearance in this action. (ECF No. 90.) Defendant Jones then moved to vacate the Certificate of Default. (ECF No. 92.) I found that Defendant Jones demonstrated good cause for the Court to vacate the Certificate of Default, and accordingly I granted Defendant Jones' motion and directed the Clerk of the Court to vacate the Certificate of Default. (ECF No. 96.)
Because the Certificate of Default has been set aside, Plaintiff's motion for a default judgment is moot. See Kampfer v. Cuomo, 993 F.Supp.2d 188, 192 (N.D.N.Y. 2014), aff'd, 643 Fed.Appx. 43 (2d Cir. 2016) (denying a motion for default judgment as moot where the court set aside the entry of default); Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 109 F.R.D. 692, 698 (S.D.N.Y. 1986) (same).
Accordingly, I respectfully recommend that Plaintiff's motion for default judgment at ECF No. 85 be denied as moot.
The Clerk of Court is requested to mail a copy of this order to Plaintiff.
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). If either party files written objections to this Report and Recommendation, the other party may respond to the objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Objections and responses thereto shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable J. Paul Oetken at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Oetken. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).