Reyes Obando v. AMD Food Corp. et al

DocketREQUEST for Certificate of Default is denied at this time. As per Judge Bulsara's May 1, 2023 Order, Defendants must answer, move, or otherwise respond to the Complaint by 5/11/2023. re #15 Request for Certificate of Default (JP) (Entered: 05/02/2023)

DocketORDER: The Motion for Extension of Time to File Answer #16 is granted. Defendants have 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, Defendants have established that the default was not willful, but due to a delay in learning of the Complaint. See, e.g., Am. Alliance Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996) (explaining that courts look for "bad faith, or at least something more than mere negligence" to establish willfulness); 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 evidenced "an intention and attempt to defend against the action"). Second, Plaintiff has consented to an extension of time. And third, Defendants are prepared to promptly respond to the Complaint and proceed with litigation, indicating that a meritorious defense may be present; the Court's preference is to resolve cases 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 Int'l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001)). Defendants must answer, move, or otherwise respond to the Complaint by 5/11/2023. So Ordered by Magistrate Judge Sanket J. Bulsara on 5/1/2023. (MD) (Entered: 05/01/2023)

Docket(#16) Notice of MOTION for Extension of Time to File Answer re #1 Complaint by AMD Food Corp., Sunshine Food Corp., Asmatullah Tokhie. (Attachments: #1 Memorandum in Support, #2 Declaration of Asmatullah Tokhie in Support) (Monaghan, Kyle) (Entered: 04/28/2023)

Docket(#15) Request for Certificate of Default by Jonny Osmar Reyes Obando (Attachments: #1 Affirmation of Jason Mizrahi, #2 Proposed Default for AMD Food Corp.) (Mizrahi, Jason) (Entered: 04/17/2023)

DocketORDER: The Motion for an Extension of Time to Answer #14 is denied without prejudice to renewal. Defendants seek to extend the time to answer, move, or otherwise respond to the Complaint. Defendants' Answers were due on 3/31/2023 and 4/10/2023. Because they are seeking to extend the time to answer after the time to do so has passed, Defendants must file a motion by 4/28/2023 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 4/14/2023. (MD) (Entered: 04/14/2023)

Docket(#14) Consent MOTION for Extension of Time to File Response to Complaint and Withdrawal of Document No. 11 by AMD Food Corp., Sunshine Food Corp., Asmatullah Tokhie. (Monaghan, Kyle) (Entered: 04/13/2023)

Docket(#13) NOTICE of Appearance by Kyle Francis Oakes Monaghan on behalf of AMD Food Corp., Sunshine Food Corp., Asmatullah Tokhie (aty to be noticed) (Monaghan, Kyle) (Entered: 04/13/2023)

Docket(#12) NOTICE of Appearance by Joseph M. Labuda on behalf of AMD Food Corp., Sunshine Food Corp., Asmatullah Tokhie (aty to be noticed) (Labuda, Joseph) (Entered: 04/13/2023)

Docket(#11) Request for Certificate of Default by Jonny Osmar Reyes Obando (Attachments: #1 Exhibit Affirmation of Jason Mizrazi, #2 Proposed Order Proposed Default) (Mizrahi, Jason) (Entered: 04/03/2023)

Docket(#10) SUMMONS Returned Executed by Jonny Osmar Reyes Obando. AMD Food Corp. served on 3/20/2023, answer due 4/10/2023. (Levin-Epstein, Joshua) (Entered: 03/22/2023)

Docket(#9) SCHEDULING ORDER: An in person telephonic-initial conference will take place on 6/30/2023 at 11:30 A.M. before Magistrate Judge Sanket J. Bulsara. The parties are directed to call the toll-free number 877-336-1274. The access code is 6534420. Plaintiff is directed to notify defendants of this scheduling order at the time that defendants makes an appearance 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 6/27/2023. 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 3/20/2023. (EM) (Entered: 03/20/2023)

Docket(#8) SUMMONS Returned Executed by Jonny Osmar Reyes Obando. Asmatullah Tokhie served on 3/10/2023, answer due 3/31/2023. (Levin-Epstein, Joshua) (Entered: 03/16/2023)

Docket(#7) This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) (Entered: 03/08/2023)

Docket(#6) 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. (SR) (Entered: 03/08/2023)

Docket(#5) Summons Issued as to All Defendants. (SR) (Entered: 03/08/2023)

DocketCase Assigned to Judge LaShann DeArcy Hall 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. (SR) (Entered: 03/08/2023)

Docket(#4) Proposed Summons. by Jonny Osmar Reyes Obando (Levin-Epstein, Joshua) (Entered: 03/05/2023)

Docket(#3) Civil Cover Sheet.. by Jonny Osmar Reyes Obando (Levin-Epstein, Joshua) (Entered: 03/05/2023)

Docket(#2) CONSENT to become party in a collective action. by Jonny Osmar Reyes Obando (Levin-Epstein, Joshua) (Entered: 03/05/2023)

Docket(#1) COMPLAINT against AMD Food Corp., Sunshine Food Corp., Asmatullah Tokhie filing fee $ 402, receipt number ANYEDC-16466532, filed by Jonny Osmar Reyes Obando. (Levin-Epstein, Joshua) (Entered: 03/05/2023)