DeJesus v. Communications Workers of America

137 F.R.D. 213, 1991 U.S. Dist. LEXIS 9835, 1991 WL 138508

• Court: District Court, S.D. New York
• Decided: July 18, 1991
• Docket: No. 88 Civ. 3985 (RO)
• Status: Published

Opinion

MEMORANDUM AND ORDER

OWEN, District Judge:

Plaintiff, alleging unfair discharge and termination of disability benefits, seeks a default judgment against defendant New York Telephone Company (Telco) on the ground that Telco failed to “answer” the amended complaint. On April 4,1989 Telco timely served its answer to the amended complaint upon the attorneys for plaintiff and co-defendant CWA. Plaintiff does not contest that he was properly served with Telco’s answer, but rather claims that Telco did not file a copy of its answer with the court shortly thereafter. Plaintiff has proceeded through two years of discovery, Court appearances, motion practice, and preparation for trial without questioning Telco’s answer. Indeed, plaintiff only moved for this default when, shortly before the scheduled trial date, plaintiff’s counsel looked through the Court files and discovered that Telco had neglected to file its answer. Telco thereupon filed its answer and cured this technical oversight. Under these circumstances, it is inconceivable that any attorney could, in good faith, believe that a Court would enter default judgment against a defendant. Plaintiff’s motion is denied and because plaintiff’s motion is so patently frivolous I award to defendant its expenses of opposing this motion in the amount of $250.00, to be paid within 30 days or proceedings are thereafter stayed until this is done.

So ordered.