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United States District Court, S.D. New York

March 11, 2004.

SHAWN GREEN, Plaintiff,
JACOBSEN, ET AL., Defendants; SHAWN GREEN, Plaintiff, v. NYC DOC, ET AL., Defendants; SHAWN GREEN, Plaintiff, v. DEPARTMENT OF CORRECTION, ET AL., Defendants

The opinion of the court was delivered by: BARBARA JONES, District Judge


Pro se Plaintiff Shawn Green moves pursuant to Fed.R.Civ.P. 60(b) and Local Rule 6.3 for reconsideration of this Court's Order, dated February 11, 2004. The February 11th Order denied four separate motions previously filed by Plaintiff, however, in his submissions Plaintiff appears to be arguing for Page 2 reconsideration of only one of those denials: his Rule 60(b) motion filed on May 30, 2003 seeking to alter a previous Order issued by this Court, dated November 28, 2001, which denied his motions for default judgment. In addition to the May 30, 2003 Rule 60(b) motion, for which Plaintiff now seeks reconsideration, Plaintiff brought a previous motion to reconsider the November 28, 2001 decision, which the Court denied on August 23, 2002. The Court originally denied Plaintiff's motions for default judgment because he had failed to effectuate proper service upon the Defendants against whom he sought default judgment.

Plaintiff argues that the Court "has overlooked controlling decisions or factual matters, which had they been considered, might have reasonably altered the result before the court." (Pl. Mem. at 2). However, the precise controlling decisions and/or factual matters that the Court is argued to have overlooked are not specified in Plaintiff's submission. He appears to argue that (1) default judgment should have been granted because Defendants had "constructive notice" of this action; (2) Plaintiff served Defendants through certified mail; (3) the Court's failure to conduct an investigation or hearing to determine whether Defendants had, in fact, been properly served, constitutes reversible error; and (4) delay by the U.S. Marshal excuses Plaintiff's failure to effectuate proper service. The Court deals with each of these contentions in turn. Page 3

  Plaintiff's "constructive notice" argument is frivolous, as "constructive notice" is not a recognized method of service.*fn1 The case on which Plaintiff relies for this argument, Byrd v. Abate, 964 F. Supp. 140, 146 (S.D.N.Y. 1997), is completely inapposite, as it discusses the legal standard for the "relation back" doctrine, which allows plaintiffs to overcome a statute of limitations defense.

  Plaintiff's next argument, that he effectuated service on Defendants through certified mail, is equally misguided. As the Court explained in its November 26, 2001 — and has since reiterated in its repeated denials of Plaintiff's motions attempting to revisit this issue — sending a summons and complaint to a party's work address via certified mail does not satisfy Fed.R.Civ.P. 4(e). Although N.Y. C.P.L.R. § 308(2) lists mailing as a method of personal service, it also expli citly states that a copy of the summons and complaint must also be delivered to the individual's actual place of business, dwelling place, or abode. Certified mail alone does not constitute proper service.

  The Court committed no error in denying Plaintiff's motion for default judgment without conducting an investigation or hearing. The Federal Rules of Civil Procedure provide that, in Page 4 deciding a motion for default judgment a court "may conduct such hearings or order such references as it deems necessary" in order to "establish the truth of any averment by evidence." Fed.R.Civ.P. 55(b) (2) (emphasis added). Here, no hearing was necessary as Plaintiff concedes that he served Defendants via certified mail. (Pl. Mem. at 2). The case on which Plaintiff relies, Davis v. Musler, 713 F.2d 907 (2d Cir. 1983), is not relevant.*fn2

  Finally, Plaintiff's argument that delay by the U.S. Marshal in service of a summons and complaint "constitutes `good cause for failure to complete service,'" is also not relevant in the default judgment context. (Pl. Mem. at 3). While courts have found that " [a] plaintiff should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the duties required of each of them under 28 U.S.C. § 1915(c) and Rule 4 of the Federal Rules of Civil Procedure," Puett v. Blandford, 912 F.2d 270, 275 (2d Cir. 1990), Plaintiff cites no case for the proposition that a Court may nonetheless enter default judgment Page 5 against a defendant that the U.S. Marshal has failed to properly serve. To the contrary, entering default judgment under such circumstances would be entirely improper. Cf. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) (a district court should resolve any doubt as to the propriety of a default judgment "in favor of the defaulting party").

  As mentioned above, this is Plaintiff's third motion contesting the denial of his motion for default judgment. As a general matter, "Defaults are not favored . . . and doubts are to be resolved in favor of a trial on the merits." Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). The Court has repeatedly explained why it denied Plaintiff's motion for default judgment, and any further motions rehashing this issue shall be summarily denied.

  Plaintiff's motion for reconsideration is DENIED.


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