Peterson v. Syracuse Police Department ( 2012 )

10-5308-cv
Peterson v. Syracuse Police Dep’t
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 15th day of March, two thousand twelve.
PRESENT:
GUIDO CALABRESI,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
__________________________________________
Carlos Peterson,
Plaintiff - Appellee,
v. 10-5308-cv
Syracuse Police Department,
Defendant,
Charles Lester, Officer, David Glisson, Officer, David Demand, Officer, Daniel Walsh, Daniel
Deegan, Sergeant, Henry Hilton,
Defendants - Appellants.
__________________________________________
FOR APPELLANT: Carlos Peterson, pro se, Dannemora, N.Y.
FOR APPELLEES: Jessica McKee, Assistant Corporation Counsel, of counsel, for
Juanita Perez Williams, Corporation Counsel of the City of
Syracuse, Syracuse, N.Y.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Kahn, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the default judgment of the district court is VACATED and the appeal is
REMANDED for further proceedings.
Appellants appeal from the district court’s entry of default judgment against them, and
from the district court’s entry of default, denial of their motion to vacate the entry of default, and
denial of their motion for reconsideration. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s ruling on a motion for entry of default or for entry of default
judgment for abuse of discretion. Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 171 (2d Cir.
2001); New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (stating that we have “expressed a
strong preference for resolving disputes on the merits” and that a default judgment is “the most
severe sanction which the court may apply” (internal citations and quotation marks omitted)).
The district court judge is “the person most familiar with the circumstances of the case and is in
the best position to evaluate the good faith and credibility of the parties,” thus a reviewing court
will defer to his decision unless it is clearly wrong. Davis v. Musler, 713 F.2d 907, 912 (2d Cir.
1983).
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I. Entry of Default
Appellants argue that the district court’s entry of default was procedurally flawed
because Peterson did not request an entry of default from the district court. The plain language
of Rule 55(a) however does not mandate that a default be entered only upon plaintiff’s request
but rather implies that however a district court ultimately becomes aware of a party’s default, the
clerk must enter default. See Fed. R. Civ. P. 55(a). Although Rule 55(a) contemplates that entry
of a default is a “ministerial” step to be performed by the clerk of court, a district court judge
also possesses the inherent power to enter a default. Beller & Keller v. Tyler, 120 F.3d 21, 22
n.1 (2d Cir. 1997); see also Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1152 n.11 (2d Cir. 1995)
(describing “the entry of default” as “largely a formal matter”). The district court did not err in
entering default against the defendants.
II. Motion to Vacate Entry of Default
Rule 55(c) permits a party to be relieved of default “for good cause,” whereas a default
judgment may only be set aside in accordance with Rule 60(b). Fed. R. Civ. P. 55(c). While
Rule 55(c) does not define “good cause,” this Court has advised district courts to consider three
criteria in deciding a Rule 55(c) motion: (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. Enron Oil Corp. v. Diakuhara, 10 F.3d 90,
96 (2d Cir. 1993). The same factors are applied in the context of a Rule 60(b) motion to set
aside a default judgment, although they are applied more rigorously, and the district court must
resolve any doubts in the defaulting party’s favor. Id.Here because the defendants moved for relief pursuant to Rule 55(c) prior to the entry of
default judgment, their motion warranted consideration under the “good cause” standard. While
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the district court’s decision did not explicitly state whether it applied the “good cause” standard
under Rule 55(c) or the stricter standard of Rule 60(b) to evaluate the defendants’ motion, the
district court ultimately concluded that relief was not warranted under either Rule.
In the present case, we need not address the first criteria, whether the default was willful,
because on balance the district court properly concluded that the other two criterion were met.
There was nothing improper in the district court’s conclusion that Peterson would suffer
prejudice due to the defendants’ actions. The fact that Peterson did not file a single discovery
request during the entire discovery period may have mitigated any prejudice suffered by
Peterson, but this fact does not render the district court’s finding of prejudice an abuse of
discretion. Rather, as the district court noted, prejudice may be found where a plaintiff would
suffer increased difficulty in conducting discovery, as Peterson would here due to his lack of
knowledge of the defendants’ affirmative defenses with only a week remaining in the discovery
period. See Davis, 713 F.2d at 916 (noting that substantial prejudice could be shown by
“increased difficulties of discovery”).
Nor did the district court improperly conclude that the defendants had not established a
meritorious defense. While the district court may have overlooked a fact presented in the
defendants’ memorandum of law stating that it was Peterson who became belligerent and began
fighting with the officers, this error was harmless because unsworn statements in a memorandum
of law are not evidence. See Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009). Moreover,
even that memorandum did not traverse the claim that the defendants used excessive force. The
defendants’ motion to vacate the entry of default was almost completely devoid of reference to
any underlying facts regarding their defenses and contained no facts, which, if proven at trial,
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would constitute a complete defense to Peterson’s excessive force claim. The district court did
not err in concluding that Appellants had not established a meritorious defense.
III. Entry of Default Judgment
Once a plaintiff has obtained an entry of default pursuant to Rule 55(a), to obtain a
default judgment the plaintiff must follow the provisions of Rule 55(b). Green, 420 F.3d at 104.
An entry of default judgment “converts the defendant’s admission of liability into a final
judgment that terminates the litigation and awards the plaintiff any relief to which the court
decides [the plaintiff] is entitled.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114,
128 (2d Cir. 2011). A default judgment may not be entered until the amount of damages has
been ascertained. Enron, 10 F.3d at 95, 97. Here, the district court’s December 2, 2010 default
judgment against the defendants was improper because the district court entered that judgment
before the amount of damages had been ascertained. Accordingly, the district court’s entry of
default judgment must be vacated, and the case remanded so the district court may conduct
further proceedings to ascertain the amount of damages to which Peterson is entitled.
IV. Motion to Alter or Amend the Judgment
We review the denial of a Rule 59(e) motion for abuse of discretion.1 Schwartz v. Liberty
Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir. 2008). A court may grant a motion to alter or amend a
1
On appeal, Appellants argue that, because the district court’s entry of default judgment
was improper as it was entered prior to a calculation of damages, their evidence submitted in
support of their motion pursuant to Fed. R. Civ. P. 59(e) should be considered a second Rule
55(c) motion to vacate the entry of default. However, Appellants provide no support for that
proposition. To the contrary, “[a] district court has the inherent power to reconsider and modify
its interlocutory orders prior to the entry of judgment,” as the district court did here. See United
States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982). Accordingly, the defendants’ motion should
not be viewed a second motion to vacate the entry of default.
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judgment where (1) there is an intervening change in the controlling law; (2) new evidence
previously not available comes to light; or (3) it becomes necessary to remedy a clear error of
law or to prevent manifest injustice. Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d
1245, 1255 (2d Cir. 1992). With respect to the Rule 59(e) motion that Appellants filed after the
district court granted the motion for default judgment, Appellants argue the district court should
have granted their Rule 59(e) motion based on “evidence previously not available” and to
prevent manifest injustice. The district court did not abuse its discretion in denying the Rule
59(e) motion advanced on that basis. While Peterson’s deposition transcript attached to the
defendants’ motion may not have been available when the defendants filed their motion to vacate
the entry of default, the transcript does not reveal any facts that, if proven at trial, would
constitute a complete defense. The remaining “evidence,” including the officers’ narratives
stating the details surrounding Peterson’s arrest, was all available prior to the initiation of
Peterson’s complaint. Finally, the district court properly concluded that manifest injustice would
not result from the denial of the defendants’ motion for the reasons stated in the district court’s
decision and order.
Accordingly, we VACATE the default judgment of the district court and REMAND the
case for further proceedings. If either parties appeal the judgment of the district court, the appeal
will be assigned to this panel. We AFFIRM the district court’s entry of default against the
defendants and the denial of the defendants’ motions to vacate the entry of default and for
reconsideration.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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