dismiss the complaint on the ground that the plaintiff failed to
properly serve copies of the summons and complaint.
On March 26, 2001, the Court received a "Notice of Appearance
for The Net, Inc., and John Doe 1." The notice states,
"Defendant The Net, Inc., by and through it sole proprietor,
Keith Maydak, sued as John Doe I, pro se, notifies the Court
and the parties that they appear specially in this action as
defendants to challenge sufficiency of service and personal
jurisdiction." The notice also sets forth the defendants'
address as 500 Lincoln Highway, N. Versailles, PA 15137. In
addition to the Notice of Appearance, the Court received a
motion from Maydak to strike the default that had been entered
against The Net.
In an order dated April 16, 2001, the Court denied Maydak's
motion to strike the default that had been entered against The
Net. The Court stated that Maydak had filed the motion on behalf
of The Net. However, Maydak is not an attorney and, therefore,
is precluded from representing a corporation, partnership, or
association, such as The Net. Accordingly, the Court denied
Maydak's motion to strike the default without prejudice and with
leave to renew upon retaining counsel to represent The Net. The
Court also ordered that, in light of the fact that The Net filed
papers indicating its willingness to defend this action, the
plaintiffs motion for the entry of a default judgment would be
held in abeyance for 30 days so that The Net could retain
counsel. The Court further ordered that if after 30 days, The
Net failed to establish that it had retained counsel, the Court
would enter a default judgment against The Net.
On May 18, 2001, the Court received four undated motions from
Maydak: (1) a motion by The Net, Inc., by and through its sole
proprietor, Maydak, for reconsideration of the April 16, 2001
order of the Court directing The Net to appear through counsel;
(2) a motion by Maydak to compel service of the complaint on him
as the real party in interest; (3) Maydak's motion for leave to
intervene as a defendant in the case; and (4) Maydak's motion to
dismiss the complaint as moot, because the domain name,
"ups.net" is no longer registered to The Net, Inc.
In a letter dated May 16, 2001, counsel for the plaintiff
argues that Maydak's motions are in violation of Local Civil
Rule 7.1, 7.2 and 37.3(a), because they are not accompanied by a
supporting affidavit or legal memoranda. UPS argues that the
Court should deny The Net's motion for reconsideration, because
the motion is untimely and The Net failed to demonstrate that it
had retained counsel. UPS states that it is prepared to oppose
the other relief requested by The Net if the Court chooses to
entertain any of the Maydak's motions.
UPS agrees with Maydak that during the pendency of this
litigation, a third party registered the "ups.net" domain name
through a domain name registrar other than NSI. UPS argues that
because the Court previously ordered UPS to deposit the original
Registrar Certificate for the "ups.net" domain name issued by
NSI into the Registry of the Court, the Court has complete
control and authority over the registration of the "ups.net"
domain name. UPS states that it intends to pursue the current
domain name registrant and responsible domain name registrar for
contempt of this Court's May 18, 2000 order.
This decision addresses the four motions submitted by Maydak
and the opposition papers submitted by UPS
The first issue before the Court is whether to entertain
UPS correctly points out that none of Maydak's submissions is
supported by an affidavit or memorandum of law, and none of them
specifies the rules or statutes upon which it is based. Although
these omissions mean that Maydak's motions are in violation of
Local Civil Rules 7.1 and 7.2, the Court declines to reject them
on that basis. The submissions of a pro se litigant should be
held "`to less stringent standards than formal pleadings drafted
by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173,
176, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d
Cir. 1993). Furthermore, the Court must make reasonable
allowances so that a pro se plaintiff does not forfeit rights
by virtue of his or her lack of legal training. See Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Accordingly, the Court
will consider Maydak's four motions despite the fact that they
do not contain affidavits, memoranda, or legal support.
A. The Motion for Reconsideration
Maydak moves for reconsideration of the Court's April 16, 2001
order directing The Net to retain counsel, denying his motion to
vacate the default, and holding in abeyance the plaintiff's
motion for a default judgment. Maydak asserts that The Net
should not be required to retain counsel because it is a sole
proprietorship, not a corporation, partnership, or association.
He claims that he is the sole owner of The Net, which exists
only as his alter ego. He states that "no corporation papers
[have been filed], no partnership papers produced, nor any
formation papers of an association." Maydak also states that he
is the real party in interest and has not been served with a
copy of the summons and complaint in this case. For these
reasons, Maydak requests that the Court reconsider the order
directing The Net to obtain counsel.
UPS argues that the Court should reject Maydak's motion for
reconsideration, because it was not timely filed. Motions for
reargument are governed by Rule 6.3 of the Local Rules of the
United States Courts for the Southern and Eastern Districts of
New York. Local Rule 6.3 provides as follows:
A notice of motion for reargument shall be served
within ten (10) days after the docketing of the
court's determination of the original motion. There
shall be served with the notice of motion a
memorandum setting forth concisely the matters or
controlling decisions which counsel believes the
court has overlooked. No oral argument shall be heard
unless the court grants the motion and specifically
directs that the matter shall be reargued orally. No
affidavits shall be filed by any party unless
directed by the court.
The standard for granting a motion for reconsideration "is
strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the
court overlooked — matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court." Shrader v. CSX Transportation, Inc., 70 F.3d 255,
256-57 (2d Cir. 1995) (citations omitted). The difficult burden
imposed on the moving party has been established "in order to
dissuade repetitive arguments on issues that have already been
considered fully by the Court." Ruiz v. Commissioner of the
D.O.T. of City of New York, 687 F. Supp. 888, 890 (S.D.N.Y.
1988), modified on other grounds,
considered such issues, "would have mandated a different
result." Durant v. Traditional Investments, Ltd., 88 CV 9048,
1990 WL 269854 (S.D.N.Y. April 25, 1990).
Local Rule 6.3 clearly states that motions for reargument or
reconsideration shall be filed within 10 days of the after the
docketing of the court's determination of the original order.
The order at issue here was docketed on April 21, 2001.
Therefore, Maydak's request for reconsideration, which was filed
on May 18, 2001, is untimely under Local Rule 6.3. However,
given that Maydak filed his request within the 30 day period in
which the Court permitted The Net to retain counsel and that
Maydak is not represented by counsel, the Court will consider
his motion for reconsideration timely filed.
It appears that Maydak argues that the Court overlooked his
allegation that The Net is not a corporation, partnership, or
association when denied Maydak's motion to vacate the default
and directed The Net to retain counsel. Among the papers the
Court considered when it entered the April 16, 2001 was Maydak's
March 13, 2001 letter, in which he states that he is the
proprietor of The Net and is willing to accept service on behalf
of The Net. Although UPS named the defendant as "The Net, Inc.",
it does not dispute Maydak's claim that he is the sole owner and
proprietor of The Net. Thus, based on Maydak's assertion and the
absence of an objection by UPS, the Court finds that The Net is
a sole proprietorship solely owned by Maydak. As such, Maydak,
as the sole owner of The Net, can represent The Net pro se in
federal court. See Kraebel v. New York City Dep't of Housing
Preservation and Development, 2002 WL 14364 *4, n. 5 (S.D.N.Y.
Jan. 3, 2002) (holding that the plaintiffs pro se status was
acceptable because a sole proprietorship may be represented by
its owner); Pension Benefit Guaranty Corp. v. Viking Food
Service, Inc., 1994 WL 702042 1 (S.D.N.Y. Dec. 14, 1994)
(stating that sole proprietors are entitled to represent
themselves pro se). The Court notes that if, during the course
of the litigation, it becomes clear that The Net is a
corporation, partnership or association, or has taken on an
existence separate from Maydak, The Net will be required to
retain counsel. However, it appearing that The Net is as sole
proprietorship, Maydak's motion for reconsideration is granted,
and the Court's April 16, 2001 order is vacated.
B. The Motions for a Default Judgment and to Vacate the
Because The Net is currently in default, the next issue before
the Court is whether that default should be vacated.