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GARDEN CITY BOXING CLUB v. ARLI RESTAURANT & BUFFET

United States District Court, S.D. New York


May 24, 2004.

GARDEN CITY BOXING CLUB, INC., Plaintiff, -against- ARLI RESTAURANT & BUFFET and JUAN ALMONTE, Defendants

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

This is an action under Section 705 of the Communications Act of 1934, as amended, 47 U.S.C. § 553, 605, to recover civil penalties for defendants' alleged unlicensed exhibition of the Berrera-Morales fight in June 2002, the rights for which belonged to the plaintiff. Plaintiff now seeks a default judgment.

The complaint alleges that Arli Restaurant & Buffet is a New York corporation and that its owner is Juan Almonte. The affidavit of service states that it was served by delivery of the summons and complaint to "PEDRO `DOE' — AUTH.PARTY**" at the Bronx address of the restaurant. This does not constitute proof of due service on the corporation. There is no evidence that Pedro "Doe" was an officer, managing or general agent, or other agent authorized by appointment or by law to receive service Fed R Civ P. 4(h)(1); see also N.Y. CPLR § 311, subd. 1.

  The affidavit of service concerning the individual defendant states that Almonte was served at the restaurant by delivering process to Pedro "Doe." This did not constitute delivery to Almonte personally. Nor was the service made at Almonte's dwelling house or usual place of abode, let alone delivered there to a person of suitable age and discretion then residing there or to an agent authorized by appointment to receive process. Fed.R.Civ.P. 4(e). Nor did plaintiff satisfy N.Y. CPLR 308, subd. 2, as there was no basis given for concluding that Pedro "Doe" was a person of suitable age and discretion.

  In view of the lack of proof of due service, the application for a Rule 55(a) default and for a default judgment is denied. Plaintiff shall show cause, on or before June 7, 2004 why the action should not be dismissed for failure to make service within 120 days of its commencement.

  SO ORDERED.

 It is ORDERED that counsel to whom this Order is sent is responsible for faxing a copy to all counsel and retaining verification of such in the case file. Do not fax such verification to Chambers.

20040524

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