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
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.
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.
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