UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

T H I S SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL

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C O L L A T E R A L ESTOPPEL OR RES JUDICATA.

A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the United States

C o u r t h o u s e , Foley Square, in the City of New York, on the

5 t h day of June, two thousand and six.

P R E S E N T : H O N . JOSEPH M. McLAUGHLIN,

H O N . DENNIS JACOBS,

H O N . BARRINGTON D. PARKER,

C i r c u i t Judges,

X

K E N N E T H WYNDER,

Plaintiff-Appellant,

-v.- N o . 05-5668-cv

J A M E S McMAHON, DAVID SPAHL, ROBERT

J O N E S , LOUIS B. BARBARIA and CRAIG

M A S T E R S O N , individually, JOSH

KEATS,

Defendants-Appellees,

M a r i n e Midland Bank,

Defendant.

X A P P E A R I N G FOR APPELLANT: R I C H A R D J. MERRITT, L i n d e n h u r s t , NY, for Plaintiff Appellant.

A P P E A R I N G FOR APPELLEE: C A R O L FISCHER, Assistant S o l i c i t o r General of the State o f New York (Eliot Spitzer, A t t o r n e y General of the State o f New York, of counsel, M i c h a e l S. Belohlavek, on the b r i e f ) , for Defendants Appellees.

A p p e a l from a judgment of the United States D i s t r i c t Court for the Eastern District of New York ( G l a s s e r , J.), entered September 16, 2005, denying p l a i n t i f f ' s motion for default judgment and "order[ing] a n d adjudg[ing] that plaintiff take nothing of defendants." U P O N DUE CONSIDERATION, it is ORDERED, ADJUDGED, A N D DECREED that the judgment of the district court is V A C A T E D and REMANDED.

W e assume familiarity with the facts, the p r o c e d u r a l history, and the issues on appeal.

"[W]e lack jurisdiction to hear an appeal unless the decision is a `final decision[],' . . . that ends the litigation, leaving no issues unresolved between any of the parties and nothing for the court to do but execute the judgment." MacEwen Petroleum, Inc. v. Tarbell, 136 F.3d 263, 264 (2d Cir. 1998) (emendation in original) (citing 28U.S.C. § 1291)). An order of the district court denied plaintiff's motion for default judgment. Then, without explanation, the district court seemingly entered judgment. See Appx. at 17 (entry of judgment citing to memorandum order denying motion for default judgment); see also Appx. at 15 (bearing docket entry entitled "CLERK'S JUDGMENT").

Although oral argument was confusing in several respects, both parties agree that the case should continue in the district court. The district court has provided no explanation as to why judgment was entered.

Accordingly, we vacate the entry of judgment.

However, because judgment had been entered, Plaintiff Kenneth Wynder, who claims that his employer discriminated against him on the basis of race, properly asked this court to reverse the denial of his motion for default judgment. We review a district c o u r t ' s ruling on a motion for default judgment for a b u s e of discretion, taking into account "the w i l l f u l n e s s of the default, the existence of a m e r i t o r i o u s defense, and the level of prejudice that t h e non-defaulting party may suffer should relief be g r a n t e d . " Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 1 6 7 , 171 (2d Cir. 2001). Here, the delay in filing was i n a d v e r t e n t and no prejudice has been suffered.

T h e r e f o r e , the district court did not abuse its d i s c r e t i o n in denying plaintiff's motion.

F o r the foregoing reasons, the judgment of the d i s t r i c t court is VACATED and the case is REMANDED for p r o c e e d i n g s consistent with this order.

F O R THE COURT: R O S E A N N B. MACKECHNIE, CLERK By: L u c i l l e Carr, Deputy Clerk