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Scott Eric Luellen v. Joe Dean Hodge

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


December 12, 2011

SCOTT ERIC LUELLEN, PLAINTIFF,
v.
JOE DEAN HODGE, DEFENDANT.

The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge

DECISION & ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 20). Currently pending before this Court is a motion for default judgment by plaintiff. (Docket # 31). Specifically, plaintiff contends that defendant failed to answer the complaint by August 2, 2011, or twenty-one days following the date of service on July 12, 2011, in violation of Federal Rule of Civil Procedure 12(a). (Id.). Defendant opposes the motion. (Docket # 32).

A review of the docket reveals the following. Plaintiff filed the instant action on March 21, 2011. (Docket # 1). On June 21, 2011, the district court granted plaintiff's motion to proceed in forma pauperis and ordered the United States Marshal to serve the summons and complaint. (Docket # 7). On July 8, 2011, a summons was issued. (Docket # 8). The United States Marshal mailed the summons on July 12, 2011 and included a form entitled "Statement of Service by Mail and Acknowledgment or Receipt by Mail of Summons and Complaint." (Docket # 14). That form explained that the summons and complaint were being served pursuant to Federal Rule of Civil Procedure 4(e)(1) and New York Civil Practice Law § 312-a. (Id.).

Defendant signed the acknowledgment form on August 10, 2011 and answered the complaint on August 18, 2011. (Docket ## 9, 14).

Under Rule 4 and N.Y. C.P.L.R. § 312-a, service may be effected by mailing a copy of the summons and complaint by first class mail. See Fed. R. Civ. P. 4(e)(1) (permitting service of a summons pursuant to state law); N.Y. C.P.L.R. § 312-a (permitting service by first class mail as alternative to other forms of personal service). Under New York law, a defendant may acknowledge service by mail within thirty days of receipt of the summons and complaint. N.Y. C.P.L.R. § 312-a(b)(1). Service is then complete on the date the signed acknowledgment is mailed or delivered to the sender. Id. The defendant must then answer the complaint within twenty-one days after service is complete. Fed. R. Civ. P. 12(a)(1)(A).

The United States Marshal mailed the summons and complaint on July 12, 2011. Defendant signed the acknowledgment form twenty-nine days later on August 10, 2011, within the deadline set forth under § 312-a. Accordingly, under Rule 12, defendant had until August 31, 2011, to answer the complaint. His answer was filed on August 18, 2011.

Thus, I find that defendant timely answered the complaint in compliance with Federal Rule of Civil Procedure 12(a), and plaintiff's motion for default (Docket # 31) is DENIED.

IT IS SO ORDERED.

Marian W. Payson

20111212

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