Opinion
No. 00 Civ. 2342 (RWS).
January 11, 2001.
MEMORANDUM OPINION
Defendant Telesis Trust, Inc. ("Telesis") has moved pursuant to Rules 59(e) and 60(b), Fed.R.Civ.P., to amend the opinion and order entered on November 28, 2000 finding it in default. No opposition has been filed.
In a prior opinion of this Court, Citadel Management, Inc. v. Telesis Trust, Inc., No. 00 Civ. 2342 (RWS), 2000 WL 1725469 (S.D.N.Y. Nov. 20, 2000), Telesis was held in default for failing to file a timely answer or any opposition to Citadel's Rule 55 default motion. Default was entered against Telesis in Judgment No. 84829 on November 28, 2000.
On December 5, 2000, Telesis filed the instant motion, seeking to amend that portion of the prior opinion and order which held that Telesis was in default. Telesis argued that, pursuant to this Court's July 25, 2000 memorandum endorsement enlarging the time for Telesis to "answer or move with respect to the summons and complaint" until August 15, 2000, (see Doc. #18), it timely served an answer to the complaint on plaintiff's attorney on August 15, 2000. (Mtn. Ex. B.) Specifically, Telesis contends that its answer was timely because the terms of this Court's enlargement of time, and the Federal Rules of Civil Procedure did not require it to "file" the answer, but merely to serve it, by August 15. 2000. (Mitrani Dec. at ¶ 3.); see Fed.R.Civ.P. 5(b) (service of pleadings responsive to complaint may be made upon attorney and is complete upon mailing); 12(a)(B) (requiring service of answer within 60 days of request for waiver).
Moreover, Telesis contends that it had no intention to default, and in fact did respond to Citadel's July 17, 2000 default motion, by writing on July 18, 2000, to request an enlargement of time until August 15, 2000 to answer or move with respect to the complaint. (Mitrani Dec. at 7; Ex. A.) No mention of the default motion against Telesis was made at the September 6, 2000 hearing on Citadel;s motions. See Citadel, 2000 WL 1725469, at *3. However, Citadel did not formally withdraw its default motion against Telesis.
Rule 59 allows district courts to amend judgments upon motions filed within ten business days of the entry of judgment. Fed.R.Civ.P. 59(e). As the motion was timely filed five days from the entry of judgment; this Court may amend the judgment if facts not previously brought to the Court's attention require that the default judgment be set aside in the interests of justice. See Schrader v. CSX Transportation, Inc., 70 F.2d 255, 256 (2d Cir. 1995).
A review of the docket and the moving papers reflects that Telesis complied with Rules 5(b) and 12(a) by serving its answer within the period allowed by this Court's order of July 25, 2000. For this reason, and because the motion is unopposed, it is hereby ordered that the motion to amend the judgment and set aside the default judgment against Telesis is hereby granted, pursuant to Rule 59(e).
It is so ordered.