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U.S. v. CRICHLOW

April 9, 2004.

U.S.
v.
GRANTLEY E. CRICHLOW, Defendant



The opinion of the court was delivered by: NINA GERSHON, District Judge

REPORT AND RECOMMENDATION

On December 30, 2002, the United States filed this action against defendant Grantley E. Crichlow, pursuant to 26 U.S.C. § 7401, seeking to reduce to judgment defendant's outstanding liabilities for federal internal revenue taxes, plus statutory accruals. By Notice of Motion dated April 9, 2003, plaintiff moves for entry of a default judgment against defendant Crichlow for failure to answer or otherwise respond to the Complaint.

The motion was referred to the undersigned to prepare a Report and Recommendation.

  FACTUAL BACKGROUND

  According to the Complaint, Grantley E. Crichlow, who resides in Brooklyn, New York, filed his federal income tax returns for the tax years 1981, 1982, 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1994, 1995, 1996, but failed to pay the amounts owed in full. (Compl. ¶¶ 2, 3). The Secretary of the Treasury has calculated the amount of unpaid taxes due and owing to be $143,336.82. (Cirenza Decl.*fn1 ¶ 7). Penalties and interest on this amount have been calculated as $633,459.78 through December 31, 2002. (Id.) Together, with interest and penalties, the government alleges that defendant owes a total of $776,796.60 in unpaid taxes, interest and penalties up to December 31, 2002.*fn2

  Plaintiff alleges that defendant was sent notices of assessment and demands for payment for each of the amounts, but defendant has nevertheless refused to, failed to, or neglected to pay.

  Plaintiff thereafter commenced this action and served the Complaint on defendant on February 3, 2003. Defendant failed to answer or otherwise respond. (Cirenza Decl. ¶ 3).

  On April 10, 2003, the Clerk of Court entered a default against defendant. Plaintiff now seeks a default judgment in the amount of $776,796.60.

  DEFAULT JUDGMENT

  Rule 55(a) of the Federal Rules of Civil Procedure provides: "[w]hen a party against whom a judgment for affirmative relief is sought failed to plead or otherwise defend as provided by these rules and the fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Fed.R.Civ.P. 55(a). After a default has been entered against a party, if that party fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), a default judgment may be entered. See Fed.R.Civ.P. 55(b).

  In determining whether a default judgment should enter, courts have cautioned that a default judgment is an extreme remedy that should only be granted as a last resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). While the Second Circuit has recognized the "push on a trial court to dispose of cases that, in disregard of the rules, are not processed expeditiously [and] . . . delay and clog its calendar," it has held that the district court must balance that interest with its responsibility to "[afford] litigants a reasonable chance to be heard." See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993).

  A. Service

  Before determining whether a default should enter here, the court must first ascertain that the defaulting party has been properly served with the summons and complaint. See Copelco Capital, Inc. v. Gen. Consul of Bolivia, 940 F. Supp. 93, 94 (S.D.N.Y. 1996) (holding that "[a] court may not properly enter a default judgment unless it has jurisdiction over the person of the party against whom the judgment is sought, `which also means that he must have been effectively served with process'") (quoting 10 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure: Civil 2d § 2682, at 407 (1983)).

  As the Supreme Court noted in Henderson v. United States, "the core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objection." 517 U.S. 654, 672 (1996). In following the Supreme Court's definition of acceptable service, the Second Circuit has held that there must be service "reasonably calculated to provide actual notice of the action." Nat'l Dev. Co. v. Triad Holding Corp., 930 F.2d 253, 258 (2d Cir. 1991), cert. denied, 502 U.S. 968 (1991). If a defendant does not receive service in compliance with Rule 4 of the Federal Rules of Civil Procedure, and does not waive formal service, the court lacks personal jurisdiction over the defendant. See Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982). ...


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