Tobias v. Mega Burgers IV corp. et al
| Cecilia Rivas Tobias |
| Mega Burgers IV corp. doing business as Burger King and Jason Frocarro |
| 1:2022cv01099 |
| March 1, 2022 |
| US District Court for the Eastern District of New York |
| Frederic Block |
| Sanket J Bulsara |
| Civil Rights: Americans with Disabilities - Employment |
| 42 U.S.C. ยง 1201 Civil Rights (Disability) |
| Plaintiff |
Docket Report
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| Filing 13 Letter requesting pre-motion conference to seek leave to file a Rule 12 motion to dismiss by Jason Frocarro, Mega Burgers IV corp. (Panico, Deanna) |
| Filing 12 NOTICE of Appearance by Deanna Darlene Panico on behalf of All Defendants (notification declined or already on case) (Panico, Deanna) |
Filing 11
SCHEDULING ORDER: A telephonic initial conference will be held at 4:00 P.M. on 6/10/2022 before Magistrate Judge Sanket J. Bulsara. The parties are directed to call the toll-free number 877-336-1274. The access code is 6534420. The parties shall dial in five (5) minutes before the conference. Counsel are directed to complete the attached Rule 26(f) Report and electronically file same with the Court no later than 6/08/2022. Should the parties wish to adopt a plan for discovery different from the structure in the Rule 26(f) Report, they may do so only if they file a letter explaining why such a plan is appropriate in this case. So Ordered by Magistrate Judge Sanket J. Bulsara on 4/25/2022. (Manson, Eddie) .
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ORDER: Defendants have responded to the Court's Enron Oil order dated April 1, 2022. As the Court's order indicates, only Defendant Mega Burgers IV (Mega Burgers) Corp.'s answer--in the form of a stipulation to extend the time to do so--was late. Mega Burgers insists that its response was not late, because it was served on March 8, and it filed the stipulation on March 29, the date any answer was due. Not so. It was served on March 4, and its answer was due on March 25, as the executed summons and the Docket Sheet for the case reflect. See Dkt. No. 7. Nonetheless, the Court concludes that the factors set out in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), namely "(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented," weigh in favor of granting the motion. First, Mega Burgers has established that the default was not willful but based upon a late retention of counsel and not receiving an ECF notifications. Second, Plaintiff has consented to set aside the default. And third, Mega Burgers is prepared to promptly file an answer and proceed with litigation, which indicates that a meritorious defense may be present; the Court's preference is to resolve cases on the merits, not on default. Therefore, the motion for extension of time to answer #10 is granted. The deadline for Mega Burgers to answer, move, or otherwise respond to the Complaint #1 is extended to 4/27/2022. So Ordered by Magistrate Judge Sanket J. Bulsara on 4/25/2022. (Bruckner, Ian)
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| Filing 10 First MOTION for Extension of Time to File Answer re #1 Complaint by Jason Frocarro, Mega Burgers IV corp.. (Panico, Deanna) |
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ORDER: The parties seek to extend the time for Defendants to answer the Complaint by stipulating #9 to such an extension. The deadline for defendant Jason Frocarro to answer was 3/29/2022. The deadline for Jason Frocarro to answer, move, or otherwise respond to the Complaint #1 is extended to 4/27/2022. The deadline for defendant Mega Burgers IV Corp.'s to answer was 3/25/2022. Because it seeks to extend the time to answer after the time to do so has passed, Mega Burgers IV Corp. must file a motion by 4/15/2022 that explains why, under the standards set forth in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), a belated answer is permissible, and why a default should not be entered. Liang v. Home Reno Concepts, LLC, 803 F. App'x 444, 446 n.2 (2d Cir. 2020) ("If an answer is filed late, the court may treat the issue as one of default. See John v. Sotheby's, Inc., 141 F.R.D. 29, 35 (S.D.N.Y. 1992) ('The filing of a late answer is analogous to a motion to vacate a default.') (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)). The court may then consider whether, under the factors discussed in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), default should be vacated."). So Ordered by Magistrate Judge Sanket J. Bulsara on 4/1/2022. (Bruckner, Ian)
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| Filing 9 STIPULATION Extending Defendant's Time to Answer and Accepting Service by Cecilia Rivas Tobias (Lee, C.K.) |
| Filing 8 SUMMONS Returned Executed by Cecilia Rivas Tobias. Jason Frocarro served on 3/8/2022, answer due 3/29/2022. (Lee, C.K.) |
| Filing 7 SUMMONS Returned Executed by Cecilia Rivas Tobias. Mega Burgers IV corp. served on 3/4/2022, answer due 3/25/2022. (Lee, C.K.) |
| Filing 6 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) |
| Filing 5 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) |
| Filing 4 Summons Issued as to All Defendants. (Attachments: #1 Jason summons) (Bowens, Priscilla) |
| Filing 3 Proposed Summons. Re #1 Complaint by Cecilia Rivas Tobias (Attachments: #1 Proposed Summons) (Lee, C.K.) |
| Filing 2 Civil Cover Sheet.. Re #1 Complaint by Cecilia Rivas Tobias (Lee, C.K.) |
| Filing 1 COMPLAINT against Jason Frocarro, Mega Burgers IV corp. filing fee $ 402, receipt number ANYEDC-15334324 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by Cecilia Rivas Tobias. (Lee, C.K.) |
| Case Assigned to Judge Frederic Block and Magistrate Judge Sanket J. Bulsara. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) |
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