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FAIRMAN v. HURLEY

June 22, 2005.

PATRICIA FAIRMAN, Plaintiff,
v.
WILLIAM C. HURLEY, Defendant.



The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District

DECISION AND ORDER

INTRODUCTION

Plaintiff, Patricia Fairman, commenced this action against defendant, William C. Hurley, seeking damages regarding the alleged theft of three horses that were taken from a farm owned and operated by Ralph Urban. Urban is not a party to this action. Nevertheless, it is clear to the Court that this action is the latest in a series of federal and state court cases that concern a dispute between Urban and defendant Hurley that dates back seventeen years. One federal court characterized this dispute as "a feud bordering on Hatfield-McCoy proportions, complete with vicious name calling and threats against person, property and animals." In re Ralph Urban, No. 91-B-15142, slip. op. (Bankr. S.D.N.Y. Mar. 27, 1997) (unpublished opinion).

  This Court is aware of at least five other court cases filed by Urban or Hurley against the other concerning their feud, which has its origins in a contract for the sale of certain real property located in Yates County. The dispute has made its way into two Bankruptcy Courts, Id.; In re Urban, 202 B.R. 565 (Bankr. S.D.N.Y. Mar. 31, 1994) (No. 91 B 15142), three District Courts, In re Urban, 1998 WL 9389 (S.D.N.Y. Jan. 13, 1998) (No. 96 CIV. 8567); Urban v. Hurley, 261 B.R. 587 (S.D.N.Y. May 10, 2001) (No. 00 CIV. 7893); Urban v. Hurley, 2003 WL 23496898 (W.D.N.Y. May 22, 2003) (No. 02-CV-6329L), the Second Circuit Court of Appeals (twice), In re Urban, 125 Fed.Appx. 336, 2005 WL 387909 (2d Cir. Feb. 18, 2005) (No. 03-5046); In re Urban, Second Circuit Docket No. 04-0149, unpublished order dismissing appeal as frivolous (2d Cir. Aug. 6, 2004), and it appears that an action is still pending in New York State Supreme Court, Yates County, Hurley v. Urban, et al., N.Y. Sup. Ct. Yates Co. Index No. 01-415. Even the United States Supreme Court has been pulled into the frey and has considered the matter four times, the last time being in March of this year. Urban v. Hurley, ___ U.S. ___, 125 S.Ct. 1655 (Mar. 21, 2005) (Mem.); Urban v. Hurley, ___ U.S. ___, 125 S.Ct. 968 (Jan. 18, 2005) (Mem.); Urban v. Hurley, 535 U.S. 930 (2002) (Mem.); Urban v. Hurley, 534 U.S. 1123 (2002) (Mem.).

  Now, this action has been commenced, not by Urban in his name, but by plaintiff. It is clear that plaintiff and Urban have a long-standing personal relationship of some sort and that, although he is not present as a party, Urban is certainly here in spirit.*fn1 In fact, with the exception of the complaint, plaintiff, a resident of New Jersey, has signed all of the pleadings as: "Patricia Fairman c/o Ralph Urban."(Dkts. # 5, 6, 7, 8). After firing her attorney, plaintiff also directed that all correspondence from the Court relating to this matter be sent to her at Urban's New York City address. (Dkt. #3). Moreover, Urban attempted to act as a process server in this case and he filed an "affidavit" in support of the action. (Dkt. #8). He also communicated directly with the Court by facsimile regarding the status of the case. (See unfiled facsimiles dated April 29 and 30, 2005). Plaintiff also has been actively involved in Urban's other court actions since at least 1989, providing affidavits and other evidentiary support on his behalf. (See Dkt. #9, Exs. D, E).

  Having introduced the cast of players and set the historical stage, I turn now to what one could only hope will be the final act (in Federal Court, at least) of this long-running, overly-acted drama.

  PROCEDURAL POSTURE OF THE INSTANT CASE

  On March 26, 2003, plaintiff, then represented by counsel, simultaneously filed the complaint and a motion for a temporary restraining order. Plaintiff alleged that in February of 2003, defendant served Urban with two legal notices*fn2 purporting to show that defendant had obtained a lien on the horses and that he intended to sell them. Plaintiff asserted that the lien was fraudulently obtained by defendant under the false assumption that Urban owned the horses. Plaintiff alleged that she owned the horses, not Urban, and that she was not served with either notice. Plaintiff asserted common law claims for conversion, unjust enrichment, fraud, and intentional infliction of emotional distress, as well as a purported statutory claim for violation of the N.Y. Lien Law. She sought $30,000 in compensatory damages and $10,000,000 in punitive damages. She also sought a TRO enjoining the sale of the horses and vacating the lien. (Dkts. # 1, 2).

  One month before she filed the complaint and motion, plaintiff sought the same injunctive relief from the District Court for the Southern District of New York in connection with an appeal from the Bankruptcy Court in that district. Alleging to be the "principle creditor" (sic) of the Ralph Urban bankruptcy estate, plaintiff made the same allegations there as she did in her complaint here — namely, that defendant fraudulently obtained a lien, stole her horses, and had no authority to sell them because she was the horses' true owner, not Urban.(Dkt. #9, Ex. E). In an unpublished memorandum dated March 4, 2003, U.S. District Court Judge John S. Martin denied the motion on the grounds that plaintiff failed to establish likelihood of success on the merits. See In re Urban, S.D.N.Y. Case No. 02-CV-9632, docket entry dated 03/04/2003. Three weeks later, plaintiff sought the same relief from this Court.

  By letter dated March 27, 2003, I notified plaintiff's counsel that I was denying the motion for a TRO.*fn3 It was as clear then as it is today that plaintiff was attempting to collaterally attack the proceedings in Yates County Supreme Court, and that she was looking for a second bite of the apple after having been rejected by the Southern District just three weeks earlier. On April 1, 2003, the Clerk of the Court issued a summons directed to defendant. However, plaintiff never filed an affidavit of service stating that defendant was served with process, and defendant never filed an answer. Having lost her second bid for a TRO, it appears that plaintiff lost all interest in pursuing the action. For the next two years, plaintiff took no steps to prosecute this case whatsoever. The only document she filed in that two-year period was a notice of dismissal of her attorney. (Dkt. #3). On April 18, 2005, therefore, I issued an Order to Show Cause requesting a status update on the case and warning plaintiff that she would face dismissal for failure to prosecute if she did not respond. On May 2, 2005, plaintiff, now proceeding pro se, filed a response that sets forth in detail the status of the state court action between Urban and defendant. As for the status of the instant action, plaintiff reports only that it is "still pending." Plaintiff reported that discovery has not begun because, based on what Urban has advised her, she fears defendant will pursue discovery for ten or twenty years in order to delay the case indefinitely. (Dkt. #5).

  Plaintiff essentially admits, then, that she took no steps to prosecute this case since she filed her complaint more than two years ago. It seems that, during that time, she and Urban were busy pursuing the other court cases and appeals then pending in Yates County Supreme Court, this District Court, the Second Circuit Court of Appeals, and the United States Supreme Court. They were unsuccessful in every case and, to this Court's knowledge, have not obtained a favorable ruling regarding the original dispute over the real property, the allegedly fraudulent lien, or the alleged theft and sale of the horses.

  Now that the Court has reminded plaintiff that this action is still pending, she suddenly (and for the first time) has developed an interest in prosecuting it. Perhaps motivated by the failed outcomes in every other court action between Urban and defendant, plaintiff now moves the Court for certain relief. MOTION FOR DEFAULT JUDGMENT

  On May 5, 2005, plaintiff filed both a "Notice of Default," which sought a Clerk's Entry of Default pursuant to FED. R. CIV. P. 55(a) (Dkt. #7), and a motion "for summary judgment against Hurley on default," which the Court construes as a motion for default judgment pursuant to FED. R. CIV. P. 55(b) (Dkt. #8). The Clerk of the Court, however, did not enter a default against defendant because the file contained no affidavit of service that the summons and complaint had been properly served on the defendant. Thus, defendant's alleged failure to answer or "otherwise defend" the action has not been proven. FED. R. CIV. P. 55(a) ("When a party . . . has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.") (emphasis added); see also 10 Moore's Federal Practice, § 55.11[3][b] (Matthew Bender, 3d ed.) ("the plaintiff who seeks entry of default must show the fact of default by evidence, usually by affidavit, which shows the timing of service of the summons and complaint and avers that an answer or motion was not served within the allotted time.").

  Without first obtaining an entry of default, plaintiff cannot obtain a default judgment from this Court. See LOCAL R. CIV. P. 55(b). In any event, as set forth below, plaintiff is not entitled to default judgment because she has failed to prove that defendant was ever served with process in accordance ...


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