Frank v. Visions Multi Media Group-WUFO Radio LLC

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

ROBERT FRANK, )

)

Plaintiff, )

)

v. ) Case No. 1:17-CV-817

)

VISIONS MULTI MEDIA GROUP – WUFO )

RADIO LLC, )

)

Defendant. )

OPINION AND ORDER

Plaintiff Robert Frank brings this case against Visions

Multi Media Group-WUFO Radio LLC (“WUFO”), claiming that he was

discriminated against on the basis of his religion and his

gender when he was terminated from his job. His Complaint seeks

monetary damages for lost wages and benefits, compensatory

damages for mental anguish and emotional distress, punitive

damages, reinstatement, interest, costs and attorneys’ fees.

Currently before the Court is Frank’s motion for default

judgment (ECF No. 13). For the reasons that follow, the Court

denies the motion for default judgment and orders that the

default entered by the clerk (ECF No. 12) be vacated.

BACKGROUND

The Complaint in this case claims that Frank began working

at WUFO on January 4, 2016. During the course of his

employment, he was subjected to “numerous comments regarding his

religion and gender” by WUFO’s CEO/Operations Manager, acting

General Manager, and majority owner, Sheila Brown.

Specifically, the Complaint alleges that Ms. Brown: (1) told

Frank he was not “God like” and that God had told her he needed

to perform in a “Christian manner”; (2) would pray with people

in the office and pressured Frank to become “a member” of her

religious organization; (3) would often state her preference for

working with female staff; and (4) accused Frank of organizing a

“station takeover.” Frank was terminated on April 28, 2016.

On or about June 15, 2016, Frank filed a charge of unlawful

discrimination with the Equal Employment Opportunity Commission

(“EEOC”). On April 21, 2017, the EEOC determined that WUFO had

discriminated against him, and on May 23, 2017 issued a right to

sue letter. Frank filed suit in this Court on August 18, 2017.

WUFO answered the Complaint and filed affirmative defenses.

(ECF No. 4). The parties appeared on March 27, 2018 for a

scheduling conference, and a pretrial case management order was

issued on April 2, 2018. On April 30, 2018, Frank filed a

motion to dismiss WUFO’s answer based upon opposing counsel’s

failure to comply with the case management order. (ECF No. 8).

On May 17, 2018, the Court issued a text order setting a

response deadline of June 18, 2018, and a reply deadline of July

2, 2018. The Court went on to state that should oral argument

be necessary, a hearing would be scheduled at a later date. On

June 25, 2018, with no response having been filed, the Court

granted as unopposed Frank’s motion to dismiss defendant’s

answer. (ECF No. 10).

On July 10, 2018, Frank applied to the Court to enter

default against WUFO pursuant Federal Rule of Civil Procedure

55. (ECF No. 11). In support of his application, Frank

submitted an affidavit in which he stated that WUFO had failed

to provide mandatory disclosures or comply with mandatory ADR

provisions. The clerk’s office entered a default on July 11,

2018. (ECF No. 12).

On October 16, 2018, Frank filed a motion for default

judgment. A telephonic hearing on said motion was held on

January 22, 2019. At the hearing, defendant’s counsel asked for

additional time to respond to the motion. The Court granted

defendant’s request and allowed an additional two weeks, with

plaintiff being allowed ten days to reply to any response. The

Court made it clear that should a response not be filed, it

would schedule another hearing and plaintiff was to file a

proposed order.

Defendant submitted a response to the motion for default

judgment, arguing that due to his heavy trial calendar counsel

had “inadvertently failed” to send plaintiff’s counsel voluntary

discovery. Defendant went on to state that this inadvertent

failure did not prejudice plaintiff, nor was it “willful or

intentionally done to defy this Court’s Order or to protract

this litigation.”

Defendant’s counsel further stated that in addition to the

trial demands on his schedule, he became ill on June 2, 2018

with what he believed to be a food born illness, and was

subsequently diagnosed with cardiomyoptathy due to fatigue.

Counsel was able to take some time off to recuperate before he

began another trial on September 26, 2018. In the course of the

trial, defense counsel reportedly experienced another medical

issue that was diagnosed as vertigo. The trial concluded on

October 12, 2018.

Defense counsel contends that he tried to log into his

PACER account on January 18, 2019 and that the account was

“inactive.” He explored the Western District of New York

website in search of pleadings in another matter when he first

discovered emails notifying him of the hearing scheduled for

January 22, 2019 in the instant case. Accordingly, counsel

participated in the hearing and has been responsive to the

motion for default judgment.

DISCUSSION

A “court may set aside an entry of default for good cause.”

Fed. R. Civ. P. 55(c). In determining whether good cause to

relieve a party from default exists, the Second Circuit has

directed courts to assess three factors: “(1) whether the

default was willful; (2) whether setting aside the default would

prejudice the adversary; and (3) whether a meritorious defense

is presented.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d

Cir. 1993). Because there is a strong preference for resolving

disputes on the merits, New York v. Green, 420 F.3d 99, 104 (2d

Cir. 2005), the Rule 55(c) standard is lenient, Meehan v. Snow,

652 F.2d 274, 277 (2d Cir. 1981). Accordingly, “when doubt

exists as to whether a default should be granted or vacated, the

doubt should be resolved in favor of the defaulting party.”

Enron Oil Corp., 10 F.3d at 96.

Here, WUFO’s counsel first submits that the default was not

willful. Willfulness refers to “conduct that is more than

merely negligent or careless.” S.E.C. v. McNulty, 137 F.3d 732,

738 (2d Cir. 1998). A court should refuse to vacate a default

where there was deliberate conduct, such as “a strategic

decision to default.” Am. Alliance Ins. Co., Lt. v. Eagle Ins.

Co., 92 F.3d 57, 60–61 (2d Cir. 1996). Here, a confluence of

events, including heavy workload and physical illness, resulted

in failures to adhere to discovery requirements. There is no

indication of deliberate or willful conduct on the part of

WUFO’s counsel.

WUFO next argues that plaintiff was not injured by its

failure to provide voluntary discovery. Frank submits that

counsel’s conduct has prevented him from pursuing his claims for

over a year. The Second Circuit has held, however, that delay

alone is insufficient to show prejudice. Enron Oil Corp., 10

F.3d at 98. WUFO also notes that any prejudice arising from a

lack of shared discovery is tempered by the fact that plaintiff

received his entire employment record in the course of a

previous administrative proceeding before the New York

Department of Labor.

Finally, WUFO contends that it can present a meritorious

defense to the claim of unlawful discrimination. In order to

establish a meritorious defense, a defendant need not prove the

defense conclusively. See Securities and Exchange Commission v.

McNulty, 137 F.3d 732, 740 (2d Cir. 1998). Rather, the

defendant need only present some evidence of facts that, “if

proven at trial, would constitute a complete defense.” Enron

Oil, 10 F.3d at 98. Such evidence must consist of more than

conclusory denials. See id.; accord Sony Corp. v. Elm State

Electronics, Inc., 800 F.2d 317, 320–21 (2d Cir.1986) (requiring

“underlying facts” to establish the existence of a meritorious

defense). That said, the requirement is subject to a “low

threshold” that may be met where defendants “deny all material

allegations and stand ready to assert several affirmative

defenses.” Holford USA Ltd. Inc. v. Harvey, 169 F.R.D. 41, 44

(S.D.N.Y. 1996); see also United States v. Moradi, 673 F.2d 725,

727 (4th Cir. 1982) (“[A]ll that is necessary to establish the

existence of a ‘meritorious defense’ is a presentation or

proffer of evidence, which, if believed, would permit either the

Court or the jury to find for the defaulting party.”); 10A Fed.

Prac. & Proc. Civ. § 2697 (4th ed.) (“The demonstration of a

meritorious defense is not expressly called for by the federal

rules and, therefore, the nature and extent of the showing that

will be necessary is a matter that lies within the court's

discretion.”).

Here, WUFO submits that Frank created a hostile work

environment, and at times became belligerent toward the

employees he was tasked with supervising. WUFO further contends

that it will discredit Frank’s allegations of gender and

religion-based discrimination, and that he was in fact

terminated after he spoke negatively about the station’s owner

and tried to have himself installed as the station manager.

These facts, if proven, would serve as defenses to Frank’s

claims of discrimination.

Accordingly, the Court finds that WUFO has satisfied the

lenient standard for vacating the entry of default. WUFO’s

response to the request for a default, construed as a motion to

set aside the entry of default, is granted and the default

entered by the clerk’s office is vacated. See Meehan v. Snow,

652 F.2d 274, 276 (2d Cir. 1981) (“Even if a default had been

entered, opposition to a motion for a default judgment can be

treated as a motion to set aside the entry of a default despite

the absence of a formal Rule 55(c) motion.”). Frank’s motion

for default judgment is denied.

The striking of WUFO’s answer will not, however, be set

aside. WUFO shall file an answer or other responsive pleading

within 30 days of the date of this Opinion and Order. If WUFO

fails to file a responsive pleading within that time period, the

default will be reinstated. See, e.g., Oliner v. McBride’s

Indus., Inc., 102 F.R.D. 561, 564 (S.D.N.Y. 1984).

The Court further finds that Frank is entitled to

attorney’s fees for the time expended on the requests for entry

of a default and a default judgment. Courts in this Circuit

routinely award such fees when vacating a default. See, e.g.,

Nikolaeva v. Home Attendant Servs. of Hyde Park, 2018 WL

6984837, at *6 (E.D.N.Y. Nov. 16, 2018), report and

recommendation adopted, 2019 WL 147721 (E.D.N.Y. Jan. 9, 2019)

(collecting authorities). Frank’s motions were both reasonable

and foreseeable. If the parties cannot agree on the amount of

such costs and fees, Frank shall submit an affidavit supported

by reference to contemporaneous time records.

CONCLUSION

As explained above, the Court denies Frank’s motion for a

default judgment (ECF No. 13) and grants Defendants’ motion to

vacate the entry of default (ECF No.15). In addition, Plaintiff

is awarded attorney’s fees for all time spent in connection with

the requests for default and default judgment.

WUFO shall file an answer or other responsive pleading

within 30 days. Discovery in this matter shall be concluded by

January 20, 2020, with a motion filing deadline of February 21,

2020, and be trial ready by March 13, 2020.

Dated at Burlington, in the District of Vermont, this 21st

day of August, 2019.

/s/ William K. Sessions III

William K. Sessions III

District Court Judge