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
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
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
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
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
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.