The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Presently before the Court are Plaintiff's motions for default judgment and Defendants' motions to vacate certificates of default entered by the Clerk of the Court on January 17, 2012. Also before the Court are Plaintiff's requests for a subpoena ordering a "pre-discovery" deposition of a potential witness and Defendants' requests for sanctions against Plaintiff's counsel in the form of costs and attorney's fees.
As explained below, Plaintiff's motions for default judgment and pre-discovery deposition of a potential witness are denied. Defendants' motions to vacate the entries of default are granted. Finally, Plaintiff's counsel is ordered to show cause as to why Defendants' request for sanctions in the form of costs and attorney's fees, pursuant to Section 1927 of Title 28 of the United States Code, should not be granted.
On December 28, 2011 Plaintiff Jared Sibley ("Plaintiff") filed a complaint against his former employer, Jamestown Board of Public Utilities ("Jamestown BPU"), and three individual employees of Jamestown BPU. Plaintiff alleges that he was retaliated against for opposing unlawful discrimination against a co-worker under the Americans with Disabilities Act and the New York State Human Rights Law. Plaintiff also asserts causes of action pursuant to Section 740 of the New York State Labor Law and constitutional claims under Section 1983 of Title 42 of the United States Code.*fn1
Defendants were never properly served with the summons and complaint. Specifically, Plaintiff attempted to serve both Jamestown BPU and the individual Defendants by leaving copies of the summons and complaint with a customer service representative for Jamestown BPU. This employee was not an authorized agent for service of process under either state or federal law. Moreover, Plaintiff never mailed copies of the summons and complaint to the individual Defendants, as is required to properly complete service through delivery to an individual's place of business.
Affidavits submitted by Defendants further indicate that after William Wright, counsel for Jamestown BPU, became aware of the summons and complaint, he contacted Plaintiff's attorney Lindy Korn via letter on January 10, 2012. Mr. Wright notified Ms. Korn that service was not properly effectuated, but that Jamestown BPU was willing to waive service and proceed with defense of the action. Mr. Wright also indicated that he had not yet spoken with the individual Defendants, but that he anticipated that they would also be willing to waive service. Ms. Korn never responded to Mr. Wright's letter. Instead, three days later, she filed requests for entries of default with the Clerk of the Court. Her requests were granted on January 17, 2012.
On January 19, 2012, Jeremy Colby, Jamestown BPU's litigation counsel, contacted Ms. Korn via email. Mr. Colby reiterated that the summons and complaint were not properly served, but that Defendants were willing to waive service and proceed with defense of the action. Mr. Colby requested that Ms. Korn respond to Mr. Wright's letter regarding acceptance of service, and move to set aside the Clerk's entries of default. Ms. Korn disregarded Mr. Colby's communications. Instead, she made the instant motion seeking default judgment against all Defendants.
Plaintiff's Motion for Default Judgment
Rule 55 of the Federal Rules of Civil Procedure sets forth the two-part procedure for obtaining a default judgment. Fed. R. Civ. P. 55(a). To begin, the party moving for default must obtain an entry of default from the Clerk of the Court. Id. Secondly, the moving party must seek a default judgment from the Court. Id. Here, the Clerk has entered certificates of default against all Defendants and Plaintiff now seeks a default judgment from this Court. As set forth below, Plaintiff's request for default judgment is inappropriate and will be denied.
The procedural requirements of effective service of process must be satisfied before a Court can assert personal jurisdiction over a defendant. Omni Capital Int'l v. Rudolph Wolf & Co., Ltd., 484 U.S. 97 (1987). Thus, a default judgment entered against a defendant by means of improper service is void under Federal Rule of Civil Procedure 60(b)(4). Am. Inst. Of Certified Pub. Accountants v. Affinity Card, Inc., 8 F. Supp. 2d 372, 376 (SDNY 1998). See also Dorrough v. Harbor Securities, LLC, 2002 U.S. Dist. LEXIS 13546 (EDNY 2002) (default judgment vacated where service was never properly effectuated and "the mere fact that [defendant] had knowledge of the lawsuit [was] insufficient to cure plaintiff's failure to properly effectuate service").
Federal Rule of Civil Procedure 4(h)(1) requires service on a partnership, association or corporation, such as Jamestown BPU, by delivery to "an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process."*fn2 With respect to individual Defendants, the Federal Rules require service at an "individual's dwelling or usual place ...