The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
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S.D.N.Y. Mar. 27, 1997) (unpublished opinion).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Circuit Docket No. 04-0149, unpublished order dismissing appeal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,
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[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 ...