Cromitie v. Fawbush's Galleria, Inc.
- John Cronan
- 1:22-cv-05932
- U.S. District Court · Southern District of New York
- 3
In Cromitie v. Fawbush’s Galleria, Judge Cronan ordered Plaintiff to seek default judgment or explain the delay, without deciding liability.
Seana Cromitie and Fawbush’s Galleria, Inc.; the order primarily set requirements for Cromitie’s possible default-judgment motion and required the defendant to respond or appear.
What happened
In Cromitie v. Fawbush’s Galleria, Inc., Seana Cromitie filed an amended complaint, and Fawbush’s Galleria, Inc. was served but did not appear or answer by the deadline stated in the order.
The court ordered Cromitie to file a motion for default judgment by September 8, 2022, or explain why the case should not be dismissed for failure to prosecute. The court also set a hearing for October 17, 2022, requiring the defendant to explain why default judgment should not be entered, and required Cromitie to serve the order on the defendant.
Judge John P. Cronan did not enter default judgment or decide whether the complaint stated a valid claim under the Americans with Disabilities Act. Instead, he directed the parties to be prepared to address that issue and the method for calculating damages.
The detailed version
- Cromitie v. Fawbush's Galleria, Inc. · No. 1:22-cv-05932
- John Cronan
- Aug. 18, 2022
Background
Seana Cromitie filed an amended complaint on July 13, 2022. The opinion states that Fawbush’s Galleria, Inc. was served on July 20, 2022, and that its answer was due August 10, 2022. The defendant had not appeared or answered as of the date of the order.
Order concerning default
The court ordered Cromitie, by September 8, 2022, either to move for default judgment under the court’s rules or to show why the case should not be dismissed for failure to prosecute. Cromitie also had to serve the motion and supporting papers on the defendant by September 8 and file proof of service by September 12. The defendant could oppose the motion by September 23, and Cromitie could reply by September 30.
The court ordered the defendant to appear and explain at a telephonic hearing on October 17, 2022, why default judgment should not be entered. The court stated that, if the defendant did not appear, Cromitie’s counsel should be prepared to discuss service, communications with the defendant, any intention to contest the case, the alleged conduct underlying the lawsuit, and the method for calculating damages. If the defendant appeared and opposed the motion before the hearing, the hearing would also serve as an initial case-management conference.
Americans with Disabilities Act issue
The court emphasized that a defendant’s default does not automatically require entry of default judgment. Before entering judgment, the court may consider whether the complaint’s factual allegations, taken as true, establish liability as a matter of law. The court therefore directed counsel to be prepared to address whether the complaint alleged a valid cause of action under the Americans with Disabilities Act. The order cited decisions discussing whether the Act covers websites of businesses without public-facing physical retail operations, but it did not decide that issue in this case.
Additional service requirement and disposition
The court separately ordered Cromitie to serve the defendant with a copy of the order by overnight courier within one week and to file proof of service within two business days after service. The order did not grant or deny default judgment, determine liability, or resolve the validity of the Americans with Disabilities Act claim.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.