87 F.R.D. 136 | S.D.N.Y. | 1980
MEMORANDUM OPINION
The defendant, Hellenic Lines Limited, moves to vacate a judgment entered against it for default m answering plaintiff’s complaint upon the ground that the default was due to mistake, inadvertence or excusable neglect on the part of a claim agent of the defendant; alternatively, the defendant, in the event the Court should find that there was no mistake, inadvertence or excusable neglect within the purview of Rule 60(b) of the Federal Rules of Civil Procedure, then requests that the default judgment be set aside insofar as the amount of damages are recited in the judgment in the amount of $24,600 upon the ground that plaintiff’s claim was not for a sum certain or for such a sum which can by computation be made certain and consequently the clerk’s entry of judgment was improper and further requests that an inquest be ordered to determine the exact amount of damages.
The plaintiff, in opposing defendant’s motion, emphasizes that this particular defendant has over an extended period been a persistent defaulter in answering various actions commenced against it due apparently to its policy of not promptly retaining counsel to represent the defendant and instead, treating the matter as a claim and through its claim department attempting to settle or adjust the claim evidently in an effort to avoid counsel fees, failing which the matter is sent on to counsel which in many instances may be months after the commencement of suit. This situation has previously come to the Court’s attention but each motion must be determined upon its own individual facts and so this Court disregards the somewhat acrimonious exchange in which counsel for the parties have engaged relative to other actions.
Plaintiff apparently sues as a subrogee of one of its assureds upon a claim that certain household refrigerators, freezers and water coolers carried aboard defendant’s vessel, S/S Hellenic Patriot from Newport News, United States to Hodeidah, Arab Republic, were in damaged condition upon their discharge on July 31, 1978. One year after discharge of the cargo, to wit, on July 31,
In the interval following the service of the summons and complaint upon the defendant, December 6,1979 to March 6,1980, defendant’s claim agent attempted to obtain the facts relative to plaintiff’s claim through its representative at Hodeidah, Arab Republic. Needless to say this took some time. On February 19, 1980, Hellenic Lines’ agent in Hodeidah, Arab Republic, addressed a communication to the New York office that the cargo had been out-turned without an exception or damages and that the cargo remained in the customer’s shed on the dock for almost one month before it was picked up by the consignee and that the consignee’s trucker did not note exceptions. This information did not reach Hellenic Lines in New York City until March 14, 1980 which was beyond the March 6th date when the defendant’s time to answer expired and four days after plaintiff’s attorney had filed the affidavit that defendant was in default.
That the time of the defendant to answer the complaint was extended to March 6, 1980 is beyond dispute. Thus the defendant’s claim agent, in acknowledging service of the summons and complaint, wrote to plaintiff’s counsel, “Kindly keep our time open to file an answer and/or to appear in the above matter until March 6, 1980,” and at the same time sent a copy of the letter to defendant’s representative in Hodeidah with a notice attached “Kindly furnish full particulars of discharge and delivery of the captioned shipment together with all supporting documents urgently.” The plaintiff did not object to the request for the extension and its acquiescence may be assumed. Without passing upon the merits of defendant’s position, the response by defendant’s representative at Hodeidah, Arab Republic, brought forth sufficient information to warrant resistance by defendant to plaintiff’s alleged claim.
Whether the failure to answer on March 6, 1980 was because of an inadvertence or neglect on the part of defendant’s claim agent in omitting to note the expiration date for answering in his diary, it seems to this Court that since defendant as a matter of courtesy extended plaintiff’s time to commence the action and further that in fact plaintiff had accepted without comment defendant’s request to extend the time to answer to March 6 and was aware
So ordered.
. Under the Carriage of Goods By Sea Act, 46 U.S.C. § 1303(6), suit must be commenced no later than one year after cargo is delivered or should have been delivered. Accordingly, plaintiff was required to file suit no later than July 31, 1979.
. See 8 Wright & Miller, Federal Practice and Procedure, § 2001, at 18-19; Cine Forty-Second St. Theatre v. Allied Artists, 602 F.2d 1062, 1063 (2d Cir. 1979); In re Halkin, 598 F.2d 176, 192 (D.C.Cir. 1979); Mid-West Paper Products Co. v. Continental Group, 596 F.2d 573, 579 (3d Cir. 1979); Clark v. Pennsylvania Railroad Co., 328 F.2d 591, 594 (2d Cir. 1964) (Medina, J.).