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Stanislaw Kopec, Guillermo Viri, Luis Landi, Nelson Viri (Individuallyand On Behalf of All Others Similarly Situated v. Gmg Construction Corp.

July 6, 2011

STANISLAW KOPEC, GUILLERMO VIRI, LUIS LANDI, NELSON VIRI (INDIVIDUALLYAND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED),
PLAINTIFFS,
v.
GMG CONSTRUCTION CORP., MAIUSZ GIZA, GRZEGORZ GIZA, DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

NOT FOR PRINT OR ELECTRONIC PUBLICATION

MEMORANDUM & ORDER

Pro se defendant Grzegorz Giza ("defendant") brings this motion to vacate the default judgment entered against him by this court on October 1, 2010. Defendant argues that service of process was improper and, thus, the court lacked personal jurisdiction over him. Plaintiffs oppose the motion. For the reasons set forth below, defendant's motion to vacate is granted.

BACKGROUND

Plaintiffs filed a complaint against defendants GMG Construction Corp., Maiusz Giza, and Grzegorz Giza on May 22, 2009, alleging, inter alia, that defendants failed to pay plaintiffs minimum wage and overtime compensation as required by the Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et seq., the New York Minimum Wage Act, New York Labor Law § 650 et seq., and New York Labor Law § 190 et seq. (See ECF No. 1, Complaint, dated 05/22/2009 ("Compl.") at ¶¶ 1-2.) Defendants failed to answer the complaint, and, on September 17, 2009, plaintiffs moved for entry of default. (See ECF No. 9, Request for Entry of Default, dated 09/17/2009.)

On January 27, 2010, the Clerk of Court entered a notation of default against all three defendants. (ECF No. 11, Notation of Default, dated 01/27/2010). The court referred to Magistrate Judge Carter plaintiffs' motion for entry of default judgment. (See Order Referring Motion, dated 04/05/2010.) On September 10, 2010, Magistrate Judge Carter issued a Report and Recommendation recommending entry of a default judgment against all three defendants. (ECF No. 19, Report and Recommendation, dated 09/10/2010.) This court adopted Magistrate Judge Carter's Report and Recommendation as the opinion of the court on September 30, 2010 (ECF No. 21, Order Adopting Report and Recommendation, dated 09/30/2010), and, on October 1, 2010, the Clerk of Court entered a default judgment against all three defendants in the amount of $213,002.42,*fn1 (ECF No. 23, Judgment, dated 10/01/2010).

On October 25, 2010, defendant Grzegorz Giza filed the instant motion to vacate the default judgment against him. (ECF No. 24-2, Motion to Set Aside/Vacate Judgment Due to Lack of Personal Jurisdiction, dated 10/25/2010.)

DISCUSSION

I. Standard of Review

Pursuant to Fed. R. Civ. P. 60(b), "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment . . . [if] (4) the judgment is void." Fed. R. Civ. P. 60(b). A judgment is void where personal service of the summons and complaint was not properly effected. Sartor v. Toussaint, No. 01-9194, 2002 WL 32127283, at *2 (2d Cir. Sept. 6, 2002) ("Sartor I"), remanded sub nom. Sartor v. Utica Taxi Ctr., Inc., 260 F. Supp. 2d 670 (S.D.N.Y. 2003) ("Sartor II"); Triad Energy Corp. v. McNell, 110 F.R.D. 382, 385 (S.D.N.Y. 1986). A void judgment cannot be enforced. See Sartor I, 2002 WL 32127283, at *2; Textile Banking Co., Inc. v. Rentschler, 657 F.2d 844, 850 (7th Cir. 1981); Popper v. Podhragy, 48 F. Supp. 2d 268, 271 (S.D.N.Y. 1998); Triad Energy Corp., 110 F.R.D. at 384.

II. Applicable Law

Pursuant to Fed. R. Civ P. 4(e)(1), an individual may be served with a summons and complaint by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made. . . ."*fn2 Fed. R. Civ. P. 4(e)(1). This action was brought in the Eastern District of New York. Thus, if service of process was proper under New York law, then Rule 4(e)(1) is satisfied, and the default judgment entered against defendant is not void for lack of personal jurisdiction.

Pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") § 308(4), an individual may be served: by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business . . . .*fn3

N.Y. C.P.L.R. § 308(4). The statute, however, permits "nail and mail" service only where personal delivery, see N.Y. C.P.L.R. § 308(1),*fn4 and "deliver and mail" service, see N.Y. C.P.L.R. § 308(2),*fn5 cannot be effected on ...


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