Toro v. Merdel Game Manufacturing Co.
- John Cronan
- 1:22-cv-08505
- U.S. District Court · Southern District of New York
- 3
In Toro v. Merdel, Judge Cronan reset default-judgment deadlines and required Toro to proceed or explain why the case should not be dismissed.
Andrew Toro and Merdel Game Manufacturing Co.; the order primarily imposed deadlines and required action by Toro while giving Merdel an opportunity to oppose default judgment and appear at the hearing.
What happened
In Toro v. Merdel Game Manufacturing Co., Andrew Toro had not met earlier deadlines to serve an order, file proof of service, or move for a default judgment.
The court reset those deadlines. It required Toro to move for default judgment by February 24, 2023, or explain why the case should not be dismissed for failure to prosecute. It also set deadlines for serving papers, responses, and a telephone hearing about whether default judgment should be entered.
Judge John P. Cronan did not enter default judgment or decide whether Toro’s Americans with Disabilities Act claim was legally valid. The order warned that the court would examine that issue and could dismiss the case if Toro failed to comply.
The detailed version
- Toro v. Merdel Game Manufacturing Co. · No. 1:22-cv-08505
- John Cronan
- Feb. 10, 2023
Background
The court had previously directed Andrew Toro to serve Defendant Merdel Game Manufacturing Co. with a court order, file proof of service, and move for default judgment. Those deadlines passed without the docket showing proof of service or a motion for default judgment.
Order
The court adjourned, meaning reset, the earlier deadlines. It ordered Toro to do one of two things by February 24, 2023: move for default judgment under the applicable court rules or show cause—give a reason—why the case should not be dismissed for failure to prosecute. Toro had to serve the motion and supporting papers on Merdel by March 3, file an affidavit of service by March 7, and meet later deadlines for any reply. Merdel was given until March 17 to oppose the motion, and Toro until March 24 to reply.
The court scheduled a telephone hearing for April 11, 2023, at which Merdel was to appear and explain why default judgment should not be entered. If Merdel did not appear, Toro’s counsel had to be prepared to discuss service, communications with Merdel, any intent to challenge the lawsuit, the alleged unlawful conduct, and how damages would be calculated. If Merdel appeared and opposed the motion before the hearing, the hearing would also serve as the initial case-management conference.
Americans with Disabilities Act Issue
The court explained that entering a default does not automatically require entering a default judgment. Even when a defendant does not respond, the plaintiff must establish liability as a matter of law based on the complaint’s factual allegations, which are treated as true for that purpose. The court therefore directed counsel to be prepared to address whether the complaint stated a valid claim under the Americans with Disabilities Act, including authorities discussing whether a business website without a public-facing physical retail location qualifies as a place of public accommodation. The court did not decide that issue in this order.
Disposition
Judge John P. Cronan reset the deadlines and ordered Toro to move for default judgment or show cause why the case should not be dismissed for failure to prosecute. The court did not grant or deny default judgment. It warned that failure to comply with the order could result in dismissal for failure to prosecute.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.