    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,


                                                  4
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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