Westchester Fire Insurance v. Tyree Service Corp.

304 F.R.D. 111, 2014 U.S. Dist. LEXIS 177783, 2014 WL 7370105
CourtDistrict Court, E.D. New York
DecidedDecember 29, 2014
DocketNo. 14-CV-5222 (ADS)(GRB)
StatusPublished
Cited by6 cases

This text of 304 F.R.D. 111 (Westchester Fire Insurance v. Tyree Service Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Westchester Fire Insurance v. Tyree Service Corp., 304 F.R.D. 111, 2014 U.S. Dist. LEXIS 177783, 2014 WL 7370105 (E.D.N.Y. 2014).

Opinion

DECISION AND ORDER

SPATT, District Judge.

For purposes of the present motions, the following facts are drawn from the amended complaint.

On July 24, 2008, the Defendants Tyree Holdings Corp., Tyree Service Corp., and Tyree Environmental Corp. entered into an indemnity agreement with the Plaintiff West-[112]*112Chester Fire Insurance Company (the “Plaintiff’). On July 27, 2011, the Defendants Amincor, Inc., Tyree Holdings Corp., Tyree Service Corp., and Tyree Environmental Corp. entered into a separate indemnity agreement with the Plaintiff.

Both indemnity agreements required the Defendants to indemnify and hold harmless the Plaintiff from any and all liability for losses and expenses, including attorneys’ fees. These indemnity agreements were executed in partial consideration of and to induce the Plaintiff to execute certain bonds on behalf of the Defendant Tyree Service Corp.

On September 5, 2014, the Plaintiff commenced this indemnity action. The Plaintiff seeks a judgment in the amount of $308,969.06.

On September 9, 2014, the Plaintiff filed an amended complaint.

On September 22, 2014, the Plaintiff served the Defendants with a summons and amended complaint. Although the Defendants had until October 14, 2014 to answer, they failed to do so.

On October 16, 2014, the Clerk of the Court noted the default of the Defendants.

On October 22, 2014, the Defendants moved for an extension of time to appear and answer up to and including November 7, 2014.

On October 25, 2014, the Court denied that motion and advised the Defendants that, if they wish, they may move to vacate the underlying default.

On December 5, 2014, the Defendants moved pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 55(c) to vacate the entry of default.

On December 12, 2014, the Plaintiff moved pursuant to Fed.R.Civ.P. 55 for a default judgment against the Defendants.

The Court first considers the Defendants’ motion to vacate the entry of default.

Fed.R.Civ.P. 55(c) requires “good cause” to set aside an entry of default. The determination of “good cause” requires the Court to exercise its discretion in considering tlmee factors: “(1) whether the default was willful; (2) whether setting aside the default would prejudice the party for whom default was awarded; and (3) whether the moving party has presented a meritorious defense.” Peterson v. Syracuse Police Dep’t, 467 Fed.Appx. 31, 33 (2d Cir.2012). “This test should be applied in the context of the general preference ‘that litigation disputes be resolved on the merits, not on default.’ ” Citadel Mgmt. Inc. v. Telesis Trust, Inc., 123 F.Supp.2d 133, 142 (S.D.N.Y.2000) (quoting Cody v. Mello, 59 F.3d 13, 15 (2d Cir.1995)).

“[N]o single factor is dispositive.” FedEx TechConnect, Inc. v. OTI, Inc., No. 12 Civ. 1674(RJS), 2013 WL 5405699, at *4, 2013 U.S. Dist. LEXIS 139591, at *11 (S.D.N.Y. Sept. 23, 2013); see also Wagstaff-El v. Carlton Press Co., 913 F.2d 56, 57 (2d Cir.1990) (district court did not abuse its discretion by vacating a default judgment despite a finding of willfulness, because the defaulting party had a meritorious defense and the plaintiff would not be prejudiced if the default was vacated). “When doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party.” Peoples v. Fisher, 299 F.R.D. 56, 59 (W.D.N.Y.2014) (citation and quotation marks omitted).

With regards to willfulness, some courts have held that “a good faith belief that an action will settle constitutes a reasonable basis for failing to interpose an answer.” State Street Bank & Trust Co. v. Inversiones Errazuriz Limitada, 246 F.Supp.2d 231, 250 (S.D.N.Y.2002) (citing Gonzalez v. City of New York, 104 F.Supp.2d 193, 196 (S.D.N.Y.2000) (“defendant’s counsel held the reasonable belief that the action would be settled, thereby obviating the need for a formal response”)); Joe Hand Promotions, Inc. v. Capomaccio, No. 09 Civ. 6161(MAT), 2009 WL 3268558, at *3-4 (W.D.N.Y. Oct. 6, 2009) (default not willful where communications between the parties’ attorneys regarding settlement supported impression that the parties would resolve action without court intervention).

In Gonzalez, the court found that the default was not willful because counsel for the defendants had explained that he did not [113]*113believe a formal response was required while the parties were engaged in good-faith settlement negotiations. See id. In addition, the Court noted that “[although the individual defendants should have answered despite settlement negotiations, their failure to do so does not evince the type of bad faith which would warrant default judgments against them.” Id.

Other courts, including those in this circuit, have declined to find that a litigant’s belief that a case would be settled constituted “good cause” for not filing an answer or otherwise responding to a pleading. See La-barbera v. Interstate Payroll Co., Inc., No. 07-CV-1183 (FB)(MDG), 2009 WL 1564381, at *2 (E.D.N.Y. June 2, 2009) (“[the] defendants’ willful choice to ignore this litigation in the hopes that it would be resolved out of court is not good cause.”); Directv, Inc. v. Rosenberg, No. 02 Civ. 2241(RCC), 2004 WL 345523, at *2 (S.D.N.Y.2004) (refusing to vacate default judgment where the defendant’s “failure to appear ... [was] due to his understanding that the matter would be resolved through settlement”); Int’l Painters & Allied Trades Union & Indus. Pension Fund v. H.W. Ellis Painting Co., 288 F.Supp.2d 22, 28 n. 4 (D.D.C.2003) (noting that the Gonzalez holding “does not represent the majority view”).

However, this Court follows the rule in Gonzalez and finds that, depending on the particular case, a good faith belief that the matter would be settled without judicial intervention may preclude a finding of “willfulness.” Here, in the Court’s view, the “[d]efendants’ explanation is not indicative of willful evasion of a duty to respond, or of egregious or deliberate conduct ignoring the service of process, that would support a finding of willfulness.” Joe Hand Promotions, 2009 WL 3268558, at *4. “In addition, the Defendant[s’] engagement of counsel suggests his intention to defend against the instant lawsuit, albeit belatedly.” Linkov v. Golding, No. 12-CV-2722 (FB)(LB), 2013 WL 5922974, at *4 (E.D.N.Y. Oct. 31, 2013); cf. Dixon v. Ragland, No. 03 Civ. 0826(LTS)(KN), 2005 WL 2649484, at *2 (S.D.N.Y. Oct. 14, 2005) (“[W]here there is no evidence that a client has diligently sought out counsel, the courts are more likely to conclude that a party’s inaction is willful.”).

Here, the Defendants and their counsel attest that the failure to respond to the complaint stemmed from the parties’ efforts to resolve this matter in another forum.

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304 F.R.D. 111, 2014 U.S. Dist. LEXIS 177783, 2014 WL 7370105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westchester-fire-insurance-v-tyree-service-corp-nyed-2014.