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Ahn v. Inkwell Publishing Solutions, Inc.

United States District Court, Second Circuit

June 19, 2013

KAREN AHN, KWESI CAMERON, CORNELIA CODY, CHRIS DISTASIO, PAT GARBARINI, MANUEL ALFREDO GARZON, MELISSA GRIGG, MARIA S. HERNANDEZ, CARI JACKSON, JAN C. KRAUS, NERIDA LANGSTON, GAIL MACK, MARTA MONTSENY, MAURICIO NIEBLA, JAN ORZECK, SUE MYUNG PARK, DELZA PEREIRA, WENDY PIERSON, CAROL PORTEOUS-FALL, MICHELE: MEMORANDUM & PRIDMORE, MARISA RINDONE, TOM SAETTEL, BERNARDO SARAVIA, BRUNO TARAZONA, ANA TEJADA, MARCO VILLAR, EDITH WEINBERG and SARALYN WILSON, Plaintiffs,
v.
INKWELL PUBLISHING SOLUTIONS, INC., ISREAL LUZUNARIS, PATRICIA COOKE, JANE DOES 1-5 and JOHN DOES 1-5, Defendants.

MEMORANDUM & ORDER

KEVIN NATHANIEL FOX, Magistrate Judge.

INTRODUCTION

On November 18, 2010, plaintiffs Karen Ahn, Kwesi Cameron, Cornelia Cody, Chris Distasio, Pat Garbarini, Manuel Alfredo Garzon, Melissa Grigg, Maria S. Hernandez, Cari Jackson, Jan C. Kraus, Nerida Langston, Gail Mack, Marta Montsney, Mauricio Niebla, Jan Orzeck, Sue Myung Park, Delza Pereira, Wendy Pierson, Carol Porteous-Fall, Michele Pridmore, Marisa Rindone, Tom Saettel, Bernardo Saravia, Bruno Tarazona, Ana Tejada, Marco Villar, Edith Weinberg, and Saralyn Wilson (collectively "plaintiffs"), commenced this action against defendants Inkwell Publishing Solutions, Inc. ("Inkwell"), Isreal Luzunaris ("Luzunaris"), Patricia Cooke ("Cooke"), Jane Does 1-5, and John Does 1-5, alleging, inter alia, that the defendants failed to pay them the statutory minimum wage, and overtime pay, in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and New York Labor Law § 190 et seq. Before the Court is the plaintiffs' application for a judgment by default against Inkwell and Luzunaris.

BACKGROUND

On February 7, 2011, the plaintiffs filed an affidavit of service with respect to Luzunaris. In that document, the plaintiffs' process server affirmed, among other things, the following:

That on February 02, 2011[, ] at 7:17 P.M.[, ] at 439 ALBANY COURT, WEST NEW YORK, NY 07093, deponent served the within SUMMONS IN A CIVIL ACTION, COMPLAINT & ORDER FOR INITIAL PRETRIAL CONFERENCE on ISREAL LUZUNARES [sic] therein named. AFFIXING TO DOOR: By affixing a true copy of each to the door of said premises, which is intended Recipient's RESIDENCE/PRIVATE HOUSE/USUAL PLACE OF ABODE within the state. Deponent was unable, with due diligence to find intended Recipient or a person of suitable age and discretion, thereat, having called there on: JANUARY 31, 2011 AT 4:35 PM[, ] FEBRUARY 1, 2011 AT 7:53 AM [and] FEBRUARY 2, 2011 AT 7:17 PM[.] MAILING: Deponent enclosed a copy of same in a postpaid wrapper properly addressed to Recipient at Recipient's last known residence at 438 ALBANY COURT, WEST NEW YORK, NY 07093 and deposited said wrapper in a post office or official depository under exclusive care and custody of the United States Postal Services within New York State on 2/3/2011 by REGULAR FIRST CLASS MAIL in an envelope marked PERSONAL & CONFIDENTIAL and not indicating on the outside thereof, by return address or otherwise that the communication is from an attorney or concerns an action against the party to be served. Spoke with NEIGHBOR, MS. LEE AT 437 ALBANY COURT, WEST NEW YORK, NY 07093 who stated that the Defendant lives at the aforementioned address but was unable to divulge the Defendant's place of employment.

The Honorable William H. Pauley held a conference in this action on June 3, 2011. During the conference, Judge Pauley had the following colloquy with the plaintiffs' counsel:

The Court: How can I grant summary judgment against defendants who have not been served?
[Counsel to the plaintiffs]: We can move for default - they have both been served, your Honor.
The Court: Where did you serve Mr. Luzunaris?
[Counsel to the plaintiffs]: We served him at his last known address....
The Court: He is in Mexico, isn't he?
[Counsel to the plaintiffs]: That's correct.
The Court: How do you have good service on ...

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