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Jose German Avelar v. J. Cotoia Construction

November 2, 2011

JOSE GERMAN AVELAR, PLAINTIFF,
v.
J. COTOIA CONSTRUCTION, INC., ITS AGENTS AND/OR EMPLOYEES, AND PERMANENT MISSION OF THE PEOPLE'S REPUBLIC OF THE CONGO, F/K/A GOUVERNEMENT DE LA REPUBLIQUE DU CONGO BRAZZAVILLE, ITS AGENTS OR EMPLOYEES, DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

Plaintiff commenced this action by the filing of a summons and complaint in the Supreme Court of the State of New York, County of Queens, against defendant J. Cotoia Construction, Inc. ("Cotoia") to recover damages for injuries sustained at a worksite in Westchester County. Plaintiff subsequently added the Permanent Mission to the United Nations of the People's Republic of the Congo f/k/a Gouvernement de la Republique du Congo Brazzaville ("Congo Mission") as a defendant. In November 2010, following an inquest, the state court awarded plaintiff a default judgment against Congo Mission in the total amount of $486,553.97. *fn1 Avelar v. J. Cotoia Constr., Inc. et al., No. 7162/2009 (Sup. Ct. Queens Cnty. Nov. 17, 2010). Plaintiff then levied against Congo Mission's real property and bank accounts. On May 4, 2011 Congo Mission removed the action to this Court by the filing of a notice of removal (Doc. No. 1).

Presently before the Court are Congo Mission's motions to vacate the state court default judgment, and the subsequent executions of that judgment, and to dismiss the action for lack of personal jurisdiction, under Federal Rules of Civil Procedure 60(b) and 12(b)(5) respectively. For the reasons set forth below, defendants' motions are GRANTED in their entirety.

BACKGROUND

Defendant Congo Mission is the diplomatic body from the People's Republic of the Congo accredited to the United Nations to represent the interests of that nation to the United Nations. (See Decl. of Ambassador Raymond Serge Bale (Doc. No. 8) ("Bale Decl. I") ¶ 2, May 18, 2011; United States v. Kostadinov, 734 F.2d 905, 908 (2d Cir. 1984)). Congo Mission, as owner of a site in Bronxville, New York, hired Cotoia as a contractor to perform demolition work. Cotoia subcontracted with National Waterproofing Systems LLC, plaintiff's employer. Plaintiff was injured while performing work at the Congo Mission site. (Notice of Removal Ex. A (Compl.) (Doc. 3-3), ¶¶ 1, 4--5.)

I.Proceedings in state court

Seeking to recover for those injuries, plaintiff brought an action for damages in the Queens County Supreme Court pursuant to New York Labor Law §§ 200, 240, 241, and 241-a, naming Cotoia*fn2 and, later, Congo Mission as defendants. In July 2009, plaintiff delivered English language versions of the state court summons and complaint to a receptionist at the Congo Mission premises, located at 14 East 65th Street, Manhattan. (Notice of Removal, Ex. C (Doc. No. 3-4) (Aff. of Service); Bale Decl. I ¶ 6(a).) Congo Mission never filed a timely answer. However, as the litigation progressed, plaintiff, Cotoia and Cotoia's insurer forwarded various discovery materials by mail to Congo Mission. (Pl.'s Reply to Congo Mission's Resp. in Opp'n to Pl.'s Mot. to Remand (Doc. No. 11) ("Pl.'s Remand Reply") at 5--6.) In October 2009, plaintiff notified Congo Mission by letter that if it did not answer, plaintiff would move for a default judgment. (Pl.'s Letter Mot. to Remand (Doc. No. 6) at 5.) Congo Mission received the letter and Ambassador Raymond Serge Bale, Head of Mission, replied later that month, explaining that he did not believe Congo Mission to be liable. (Bale Decl. I ¶¶ 7--8; Supplemental Decl. of Ambassador Raymond Serge Bale (Doc. No. 18) ("Bale Decl. II") ¶ 10, Aug. 31, 2011). In late October 2009, plaintiff mailed a notice of default motion to Congo Mission. (Pl.'s Remand Reply at 5.) Between late 2009 and December 2010, plaintiff mailed various litigation documents to Congo Mission, including the note of issue and copies of the state court default judgment. (Pl.'s Remand Reply at 5--6.) Congo Mission did not answer or otherwise appear in the state court action. (See, e.g., Pl.'s Remand Reply at 11, 14; Bale Decl. I ¶¶ 7, 10; Remand Hr'g Tr. at 8, Sept. 8, 2011.) Other than Ambassador Bale's October 2009 letter indicating he did not believe Congo Mission to be liable, Congo Mission took no action in response to any of the materials mailed.

In November 2010 the state court awarded plaintiff a default judgment against Congo Mission in the amount of $475,000. The judgment was docketed and recorded in February 2010. Between February 2010 and May 2010, plaintiff took steps to enforce the judgment, including the filing of judgment liens against Congo Mission properties and the attachment of Congo Mission bank accounts at Citibank, which attachments remain in effect to date. (Pl.'s Remand Reply at 4; Hr' Tr. at 7, 18, 23).

II.Removal to this Court

In May 2010, defendant Congo Mission removed the state court action by filing a notice of removal in this Court. (Doc. No. 1.) Plaintiff moved to remand. (Pl.'s Letter Mot. to Remand at 1.) The parties submitted briefs on the issues of removal, remand, and service of process under the Foreign Sovereign Immunities Act, §§ 1602 et seq. ("FSIA"). (See id.; Congo Mission's Resp. in Opp'n to Mot. to Remand (Doc. No. 7); Pl.'s Second Letter Mot. to Remand (Doc. No. 10); Pl.'s Reply in Supp. of Mot. to Remand (Doc. No. 11).) The United States, although not a party to the instant litigation, filed a statement of interest pursuant to 28 U.S.C. § 517,*fn3 contending that plaintiff's service of process upon Congo Mission, including service of the default judgment, and plaintiff's subsequent enforcement of the judgment against Congo Mission property, violated the FSIA, and international law. (Stmt. of Interest of U.S. (Doc. No. 14) at 11--13, 15--16.) The Court gave the parties the opportunity to respond to the United States, which they did by filing supplemental memoranda. (See Pl.'s Reply Mem. in Opp'n to Stmt. of Interest of United States (Doc. No. 15); Congo Mission's Supp. Mem. in Opp'n to Pl.'s Mot. to Remand (Doc. No. 17); Pl.'s Reply in Opp'n to Congo Mission's Supp. Mem. (Doc. No. 20).) On September 8, 2011, the Court heard the parties and the United States on plaintiff's motion to remand, and denied the motion for reasons stated on the record.*fn4 (See Minute Entry dated Sept. 8, 2011 (Doc. No. 21); Remand Hr'g Tr. at 28--32.)

On October 3, 2011, Congo Mission filed the instant motion to (1) dismiss for lack of personal jurisdiction, and (2) to vacate the state court default judgment, all attachments, liens and restraints against Congo Mission's property stemming from the enforcement of that judgment.

DISCUSSION

I.Vacatur of the default judgment

Pursuant to Federal Rule of Civil Procedure 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." A judgment is void where personal service of the summons and complaint was not properly effected.*fn5 Sartor v. Toussaint, 70 F. App'x 11, 14 (2d Cir. 2002); Triad Energy Corp. v. McNell, 110 F.R.D. 382, 385 (S.D.N.Y. 1986). A void judgment cannot be enforced. Sartor, 70 F. App'x at 13; 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; see also Tex. Trading & Milling Corp. v. Nigeria, 647 F.2d 300, 308 (2d Cir. 1981) (holding that absent effective service, a court lacks jurisdiction over the defendant and all actions pertaining to such defendants, including the entry of default judgment, are ...


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