Foy v. Dicks

146 F.R.D. 113, 25 Fed. R. Serv. 3d 1130, 1993 U.S. Dist. LEXIS 1007, 1993 WL 38054
CourtDistrict Court, E.D. Pennsylvania
DecidedFebruary 3, 1993
DocketCiv. A. No. 92-6488
StatusPublished
Cited by19 cases

This text of 146 F.R.D. 113 (Foy v. Dicks) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foy v. Dicks, 146 F.R.D. 113, 25 Fed. R. Serv. 3d 1130, 1993 U.S. Dist. LEXIS 1007, 1993 WL 38054 (E.D. Pa. 1993).

Opinion

MEMORANDUM

DALZELL, District Judge.

This civil rights action arises out of a clash between plaintiffs and a group of Philadelphia police officers1 that ended when Officer William Dicks allegedly shot Ricardo Foy in the back, rendering him a paraplegic. Marcello Foy claims that the same officers, former Police Commissioner Willie L. Williams, and the City of Philadelphia violated his constitutional rights when they arrested and imprisoned him for seven months.

The Clerk of this Court entered default against the City of Philadelphia and Officers Dicks, Farabelli, Cahill and Finn on December 10, 1992, and entered default against former Commissioner Williams eight days later. Now before us are the defendants’ motion to set aside the defaults and the Foys’ two motions for default judgments. Although, as will be seen, we harbor more than a little hesitation in our conclusion, we will grant defendants’ motion and deny the Foys’ motions. We shall, however, impose a significant monetary sanction against defendants to redress the waste they occasioned.

Background

Plaintiffs filed two related complaints, one on November 9, 1992 and one on November 10, 1992, both seeking damages from the defendants under 42 U.S.C. §§ 1983 and 1988. We consolidated the two complaints on November 16. On that same day, the Foys served all of the defendants except former Commissioner Williams with copies of the complaints at the City of Philadelphia Law Department. [115]*115On November 18, 1992, the Foys mailed copies of the complaints via certified mail to former Commissioner Williams at his new Los Angeles address.2 The Foys included in their mailings a postage-paid return envelope addressed to the City of Philadelphia Law Department so that former Commissioner Williams could return the signed Acknowledgment of Receipt of Summons and Complaint to the City’s attorneys. An employee at former Commissioner Williams's Los Angeles office received and signed for the deliveries on November 24. The Foys subsequently received the “green card” receipts from the U.S. Postal Service.

When the City and Officers Dicks, Farabelli, Cahill and Finn failed to answer by December 10, 1992, the Foys filed a request for an entry of default against them.3 The Clerk of the Court entered the default on the same day. In order to notify the defendants that they had requested default, the Foys mailed a copy of their, request to the City Solicitor’s office. On December 17, 1992, we entered an Order that the Foys file by December 28 a motion for default judgment, with accompanying documentation, against all the defendants against whom default had been entered. We faxed this Order to both the Foys’ counsel and the City Solicitor’s office, and defendants’ lawyer concedes he received that fax.

On December 18, 1992, the Foys filed a request for an entry of default against former Commissioner Williams because he, too, had not answered the complaints. Along with this request, the Foys filed a motion for default judgment against Commissioner Williams. The Clerk entered default on the same day. The Foys mailed a copy of their request to former Commissioner Williams in Los Angeles.

On December 28, the Foys filed a motion for default judgment against the City and Officers Cahill, Farabelli, Finn and Dicks. In that submission, the Foys informed us that they had already spent over two hundred thousand dollars for Ricardo Foy’s medical treatment, and they represented that many of their claims for compensatory damages were as yet unliquidated. On January 5, we issued an Order requesting that the Foys inform us as to whether the damages they sought to recover from former Commissioner Williams differed from those they sought from the other defendants. The Foys responded that they did not.

On January 7, over seven weeks after the Foys had served five of the six defendants and three weeks after we transmitted our faxed Order, the defendants filed an answer to the Foys’ complaints, together with a motion to set aside the entries of default.

Discussion

The decision as to whether to set aside an entry of default pursuant to Fed. R.Civ.P. 55(c)4 is left primarily to the discretion of the Court. Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir.1984). Our Court of Appeals does not favor defaults, however, and requires that doubtful cases be resolved in favor of the party moving to set aside the default “so that cases may be decided on their merits.” United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194-195 (3d Cir.1984).

Our Court of Appeals has directed us to consider four factors in deciding whether to set aside an entry of default. Emcasco Ins. Co. v. Sambrick, 834 F.2d 71 (3d Cir. 1987). Those factors are: “(1) whether lifting the default would prejudice the plaintiff; (2) whether the defendant has a prima facie meritorious defense; (3) whether the defaulting defendant’s conduct is excusable or culpable; and (4) the effectiveness of alternative sanctions.” Id. at 73 [116]*116(citations omitted). We shall consider each factor in turn.

With regard to the first Emcasco factor, we find that the plaintiffs would not be prejudiced by the setting aside of the default. Although defendants waited over seven weeks before answering the complaints served on the City and Officers Cahill, Farabelli, Finn and Dicks, and over six weeks before answering the complaints served on former Commissioner Williams, “[djelay in realizing satisfaction on a claim rarely serves to establish the degree of prejudice sufficient to prevent the opening [of] a default ... entered at an early stage of the proceeding.” Feliciano v. Reliant Tooling Co., 691 F.2d 653, 657 (3d Cir.1982). Moreover, plaintiffs have not asserted that they will suffer from “loss of available evidence, increased potential for fraud or collusion, or substantial reliance upon the [entry of default] to support a finding of prejudice.” Feliciano, 691 F.2d at 657. On this record, there is simply an insufficient basis for us to find that the plaintiffs would be prejudiced by our setting aside of the default. This first factor therefore weighs in defendants’ favor.

With respect to the second factor, we are skeptical about defendants’ ability to proffer a meritorious defense. A “meritorious defense” in this context is a defense which, if established at trial, would completely bar plaintiffs’ recovery. See Accu-Weather, Inc. v. Reuters Ltd.., 779 F.Supp. 801, 803 (M.D.Pa.1991). Our Court of Appeals has held, however, that it is not enough for defendants to proffer “simple denials and conclusionary statements” in their answer. $55,518.05 in U.S. Currency, supra, 728 F.2d at 195.

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146 F.R.D. 113, 25 Fed. R. Serv. 3d 1130, 1993 U.S. Dist. LEXIS 1007, 1993 WL 38054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foy-v-dicks-paed-1993.