Caporicci v. New York City Health and Hospital Corporation et al
| Franco Caporicci |
| New York City Health and Hospital Corporation, Tanya Moore and Sixto Valentin |
| 1:2024cv00943 |
| February 7, 2024 |
| US District Court for the Eastern District of New York |
| Frederic Block |
| Sanket J Bulsara |
| Civil Rights: Other |
| 28 U.S.C. § 1331 Federal Question: Other Civil Rights |
| None |
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ORDER: The parties are in violation of at least two Court orders, and the Plaintiff is in violation of a third. The Court issued an order on 2/23/2024 directing the parties fill out a Rule 26(f) discovery report in advance of the initial conference. Neither party did so. Having failed to file the report, the parties were then reminded to do so and required to file a late report by close of business on 4/4/2024. Neither did so. Instead, they filed a status report #18 , alluding to a motion to dismiss. No party sought an adjournment of the initial conference. Plaintiff's counsel did not appear for the conference. No stay of discovery has been entered in this case; no motion to dismiss has been filed; and indeed, no request for a pre-motion conference has been filed either. And to the extent that Defendant's notice of motion #15 alludes to a request for a stay of discovery--which is not discussed in the memo of law and provides no explanation of the grounds on which dismissal is sought--that does not constitute a motion for a discovery stay. In any event, the Court did not stay discovery. The failure to file a discovery schedule, after being twice being reminded to do so, is grounds for the imposition of sanctions. Both parties must file a letter no later than Tuesday, 4/9/2024, explaining why they have failed to comply with Court orders and why the Court should not impose sanctions payable to the Clerk of Court. Plaintiff's counsel's submission should separately explain why he should not be sanctioned for failing to appear at the initial conference and why he should not pay 1 hour of attorney's fees to Defendant's counsel.The parties must meet and confer and submit a discovery schedule, with actual dates (not dates dependent upon a decision on a motion to dismiss) with their submission on 4/9/2024. The Court will then reschedule the initial conference. So Ordered by Magistrate Judge Sanket J. Bulsara on 4/5/2024. (AL)
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| Filing 18 STATUS REPORT First Joint Status Report, by plaintiff by Franco Caporicci (Fish, Gary) |
| NOTICE REMINDER: The parties were directed to complete the attached Rule 26(f) Report #11 and electronically file same with the Court no later than 4/01/2024. The parties shall file their Joint proposed Rule 26(f) Report no later than close of business today. (EM) |
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ORDER: The renewed motion for extension of time to file answer #15 is granted. Defendant New York City Health and Hospital Corp. ("H+H") has established 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, Defendant has established that the default was not willful, but the result of an inadvertent mistake by counsel. Keebler v. Rath, 405 F. App'x 517, 519 (2d Cir. 2010) ("In establishing 'willfulness' in this context, [the] Circuit has required more than mere negligence or carelessness, but [the Circuit has] found it established where the conduct of counsel or the litigant was egregious and was not satisfactorily explained. Further, a default is not willful when it was caused by a mistake made in good faith." (internal citations and quotation omitted)); see, e.g., Baxter v. Bradley, No. 21-PR-1787, 2022 WL 1315629, at *1 (2d Cir. May 3, 2022) ("The record shows that Bradley's failure to respond to the complaint was not willful: he attempted to secure counsel from the New York State Attorney General's Office when he received Baxter's complaint and mistakenly believed he had fulfilled his obligations."), cert. denied, 143 S. Ct. 633 (2023) (mem.); Am. All. Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996) (ruling that "a filing mistake" by "counsel's clerk" was "grossly negligent" but "was not willful, deliberate, or evidence of bad faith"); Courchevel 1850 LLC v. Rodriguez, No. 17-CV-6311, 2019 WL 2233828, at *4 (E.D.N.Y. May 22, 2019) (finding prompt action after default "supports a finding that [the Defendant's] default was not willful because it evidences an intention an attempt to defend against the action."). Second, the motion was made prior to commencement ofdiscovery and there is no evidence of prejudice. Indeed, Plaintiff consents to the extension. And third, Defendant is ready to proceed with litigation, which indicates that a meritorious defense may be present. The Enron Oil standard--absent showing of deliberate, intentional failure to answer--is almost always met when the Defendant appears with counsel to defend the action. Indeed, the Court is not aware of a single case where, following the appearance of counsel to defend the case (before default judgment has been entered), a late answer has not been permitted, consistent with the Second Circuit's command that cases should be resolved on the merits, not on default. See New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (noting that the Second Circuit has "expressed a strong preference for resolving disputes on the merits" (quoting Powerserve Intl, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001))). Defendant H+H's shall file an answer or otherwise respond to the complaint by 4/18/2024. So Ordered by Magistrate Judge Sanket J. Bulsara on 4/2/2024. (AL)
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| Filing 17 AFFIDAVIT/DECLARATION in Support re #15 MOTION for Extension of Time to File Answer filed by New York City Health and Hospital Corporation. (Rosen, Elisheva) |
| Filing 16 MEMORANDUM in Support re #15 MOTION for Extension of Time to File Answer filed by New York City Health and Hospital Corporation. (Rosen, Elisheva) |
| Filing 15 MOTION for Extension of Time to File Answer by New York City Health and Hospital Corporation. (Rosen, Elisheva) |
| Case Consolidated., Case Assigned to Judge Frederic Block and Magistrate Judge Sanket J. Bulsara. Magistrate Judge Sanket J. Bulsara no longer assigned as presider to the case. 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. (DA) |
| NOTICE to Assign District Judge: The Clerk of Court is directed to assign a District Judge to this case. (EM) |
| Filing 14 (Letter addressing the Court's order dated 3/20/2024) MOTION to Continue by New York City Health and Hospital Corporation. (Rosen, Elisheva) (Wrong event type "Motion to Continue" used. The Court changed event type to a "Letter". Modified on 3/27/2024 (EM). |
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ORDER: Defendant New York City Health and Hospital Corp. ("H+H") filed a Motion for an Extension of Time to File Answer #13 . H+H seeks to extend the time to answer, move, or otherwise respond to the Complaint. H+H's answer was due on 3/6/2024. (Summons Returned Executed, Dkt. No. #10 ). Because it seeks to extend the time to answer after the time to do so has passed, H+H must file a motion by 4/3/2024 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 3/20/2024. (AL)
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ORDER: The parties are directed to inform the Court in writing by 3/27/2024, whether they consent to Magistrate Judge jurisdiction for all purposes in this case, including resolving the anticipated motion to dismiss. To the extent the parties do not consent, the letter should not reveal the name of the non-consenting party; and the Court will have a district judge assigned to the case, who will address the proposed briefing scheduling #13 on the motion to dismiss. So Ordered by Magistrate Judge Sanket J. Bulsara on 3/20/2024. (AL)
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| Filing 13 MOTION for Extension of Time to File by New York City Health and Hospital Corporation. (Rosen, Elisheva) |
| Filing 12 NOTICE of Appearance by Elisheva Leah Rosen on behalf of New York City Health and Hospital Corporation (aty to be noticed) (Rosen, Elisheva) |
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Filing 11
SCHEDULING ORDER: A telephonic initial conference will be held at 11:30 A.M. on 4/05/2024 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. Plaintiff is directed to notify defendants of this scheduling order at the time defendants makes an appearance with in this matter. Counsel are also directed to complete the attached Rule 26(f) Report and electronically file same with the Court no later than 4/01/2024. 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. Upon receipt of this email counsel shall confirm with each other of the date and time of this telephonic initial conference. So Ordered by Magistrate Judge Sanket J. Bulsara on 2/23/2024. (EM)
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| Filing 10 SUMMONS Returned Executed by Franco Caporicci. New York City Health and Hospital Corporation served on 2/14/2024, answer due 3/6/2024. (Fish, Gary) |
| Filing 9 Summons Issued as to Tanya Moore, New York City Health and Hospital Corporation, Sixto Valentin. (KD) |
| Filing 8 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (KD) |
| Filing 7 Clerks Notice Re: Consent. A magistrate judge has been assigned as the presiding judge in this case as part of a Pilot Program, governed by EDNY Administrative Order 2023-23. In accordance with Rule 73 of the Federal Rules of Civil Procedure, Local Rule 73.1, the parties are notified that if all parties consent, the assigned Magistrate Judge is available to conduct all proceedings in this action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to this 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 is also available here: #https://www.nyed.uscourts.gov/edny-direct-assignment-pilot-program. Any party may withhold its consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. Unless all parties consent to the Magistrate Judge jurisdiction by the deadline set forth in the Administrative Order 2023-23, a District Judge will be assigned to the case. The parties are directed to review the terms of Administrative Order 2023-23 and other materials related to the Pilot Program on the Courts website: #https://www.nyed.uscourts.gov/edny-direct-assignment-pilot-program. (KD) |
| Case Assigned to 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. (KD) |
| Filing 6 Civil Cover Sheet.. by Franco Caporicci (Fish, Gary) |
| Filing 5 Proposed Summons. by Franco Caporicci (Fish, Gary) |
| Filing 4 Civil Cover Sheet.. by Franco Caporicci (Fish, Gary) |
| FINAL NOTICE! Re: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed 2 Page EASTERN DISTRICT OF NEW YORK Civil Cover Sheet. Please submit a completed Civil Cover Sheet. This event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (KD) |
| Filing 3 Proposed Summons. by Franco Caporicci (Fish, Gary) |
| Filing 2 CASE MANAGEMENT STATEMENT Civil Cover Sheet (Fish, Gary) |
| Notice: Re: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed 2 Page Form Civil Cover Sheet. Please submit A COMPLETED 2 PAGE Civil Cover Sheet. This event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (KD) |
| Notice: Re: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed EDNY Civil Cover Sheet. The Civil Cover Sheet that has been uploaded is a District of Columbia Cover Sheet. Please resubmit a corrected Civil Cover Sheet USING THE CORRECT EVENT TO FILE THE NEEDED FORM. This event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (KD) |
| Filing 1 COMPLAINT Franco Caporicci against Tanya Moore, New York City Health and Hospital Corporation, Sixto Valentin filing fee $ 405, receipt number ANYEDC-17545581 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by Franco Caporicci. (Fish, Gary) |
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