Sibanda v. Elison

1:23-cv-05752

S.D.N.Y.

Nov 6, 2024

Check Treatment

Docket

Opinion Summary

Facts

Plaintiff, a practicing attorney, filed multiple requests for a certificate of default against Defendants despite having been provided notice of their intention to respond. [lines="18-19"].
Defendants waived service on September 3, 2024, establishing a deadline to respond to the complaint. [lines="30-31"].
The Plaintiff's request for a default certificate disregarded Rule 6 of the Federal Rules of Civil Procedure regarding the computation of time. [lines="19-20"].
The Clerk initially rejected Plaintiff's default request due to filing deficiencies, but Plaintiff persisted and obtained a default certificate on a subsequent attempt. [lines="63-67"].
Defendants contend that Plaintiff's default request was made in bad faith to create confusion regarding the responsive pleading deadline. [lines="60-62"].

Issues

Whether Plaintiff's request for a certificate of default was legally justified considering the provisions of Federal Rule of Civil Procedure 6 regarding time calculations. [lines="18-19"].
Whether the court should strike the certificate of default procured by Plaintiff under what Defendants claim to be false pretenses. [lines="71-72"].

Holdings

The court held that Defendants' motions were timely under Rule 6, thus rendering the Plaintiff's default request frivolous as it ignored basic procedural rules. [lines="75-76"].
The court ordered the Clerk to vacate and strike the certificate of default issued to Plaintiff, emphasizing the need to resolve disputes on their merits rather than on procedural missteps. [lines="81-83"].

OPINION

Case Information

*1 Case 1:23-cv-05752-JMF Document 157 Filed 11/06/24 Page 1 of 2

November 4, 2024

Via ECF

The Honorable Jesse M. Furman

United States District Judge

Southern District of New York

40 Centre Street, Courtroom 1105

New York, NY 10007

Re: Plaintiff’s Frivolous Default Certificate - Sibanda v. Elison et al., Case No. 1:24-cv-06310 (Rel: 1:23-cv-05752-JMF)

Dear Judge Furman:

We write by letter motion regarding Plaintiff’s recent filings in this case and to request an

order directing the Clerk of Court to strike the certificate of default.

Over the weekend, Plaintiff filed several documents purporting to request a certificate of

default as to Defendants Ashlee Lin, David Ellison, Willard Carroll Smith II (erroneously sued as

Will Smith), Gemini Pictures, LLC, Skydance Productions, LLC, Skydance Development, LLC,

and Paramount Pictures Corporation (erroneously sued as “Paramount Pictures”). However,

Plaintiff’s request is frivolous as a matter of law as Plaintiff, a practicing attorney in this District,

completely ignores Rule 6 of the Federal Rules of Civil Procedure. Rule 6 provides that when

counting a period of time if the “if the last day is a Saturday, Sunday, or legal holiday, the period

continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C); see also Gold Town Corp. v. Un. Parcel Serv., Inc. , 519 F. Supp. 3d 169, 173-74 (S.D.N.Y. 2021) (Engelmeyer, J.) (applying Rule 6(a)(1)(C) to extend time to remove action by two days where expiration of 30-day removal window occurred on a Saturday).

Defendants waived service on September 3, 2024 and 60 days from that waiver is

Saturday , November 2, 2024. However, by operation of Rule 6(a)(1)(C) Defendants had until

today to answer or otherwise move against the First Amended Complaint – which they have done

so contemporaneously with this letter motion. Defendants’ counsel even advised that they would

be proceeding with a November 4, 2024 responsive pleading deadline when service was waived

by email. Plaintiff’s default request is therefore not only frivolous in that it ignores a basic and

fundamental procedural rule regarding calculating time, but also is in bad faith as he was provided

clear notice that Defendants would be moving against his operative pleading today, November 4,

2024. More concerning is the fact that Plaintiff has also falsely claimed in ECF No. 65 that service

was accomplished by mail and that Defendants’ responsive pleading deadline was September 24,

2024. As service was accomplished in this matter when Defendants’ counsel waived service on

behalf of Defendants no such mailing occurred. It appears that Plaintiff, himself a practicing Eisner, LLP

Case 1:23-cv-05752-JMF Document 157 Filed 11/06/24 Page 2 of 2

The Honorable Jesse M. Furman November 4, 2024 Page 2 of 2 attorney in this District, framed the responsive pleading deadline in this manner to bolster the

chances that the Clerk would issue the frivolous default certificate by creating confusion as to

when Defendants responsive pleading deadline actually was.

Plaintiff’s initial request for a certificate of default was rejected by the Clerk due to filing

deficiencies. Plaintiff then filed the request three additional times – never once stopping to rethink

his course of action. On the third attempt, the Clerk issued a certificate of default. See ECF No. 75.

Defendants respectfully request that this Court issue an order directing the Clerk to strike

the certificate of default that Plaintiff procured under false pretenses. No default has occurred in

this matter and the Court should put a stop to Plaintiff’s misguided and bad faith default strategy

before expensive motion practice regarding a doomed default judgment motion is initiated by Application GRANTED. Defendants' motions are timely given Rule 6. And even if they were not timely, the Court would grant an extension nunc pro tunc given that "[s]trong public policy favors resolving disputes on the merits." State St. Bank & Tr. Co. v. Inversiones Errazuriz, Limitada, 230 F. Supp. 2d 313, 316 (S.D.N.Y. 2002) (internal quotation marks omitted) (citing cases). Accordingly, the Clerk of Court is directed to vacate and strike the certificate of default at ECF No. 75 and terminate ECF Nos. 86 and 87. SO ORDERED. Plaintiff. Defendants believe that proceeding by letter motion is the most efficient course of action to speedily expunge the improvidently issued certificate from the docket, but please let Defendants

know if they should formally initiate a full motion sequence to seek vacatur of the certificate.

Defendants reserve all rights.