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De Santis v. City of New York

United States District Court, Second Circuit

July 9, 2013

ROCCO PETER A. DE SANTIS, Plaintiff,
v.
CITY OF NEW YORK et al., Defendants.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, Magistrate Judge.

Plaintiff Rocco Peter A. De Santis brought this action against Yoalis M. Jimenez and other defendants to recover damages and costs for malicious prosecution, false arrest, and intentional infliction of emotional distress. Jimenez failed to answer and a default has been entered against her. For the following reasons, the default should be vacated and the complaint should be dismissed.

I. BACKGROUND

A. Facts Relating to Liability

The following facts are taken from De Santis's complaint and are accepted as true for purposes of this inquest. See City of N.Y. v. Mickalis Pawn Shop, LLC , 645 F.3d 114, 137 (2d Cir. 2011) ("[A] defendant who defaults thereby admits all well-pleaded' factual allegations contained in the complaint.") (citation omitted); Cotton v. Slone , 4 F.3d 176, 181 (2d Cir. 1993) ("[F]actual allegations are taken as true in light of the general default judgment....") (citation omitted).

On July 17, 2006, Jimenez appeared at the "Midtown North Detective Squadron" of the New York Police Department and informed Detective Stephen Gurniak that De Santis was stalking and harassing her. Complaint, filed Apr. 27, 2010 (Docket #1) ("Compl."), ¶ 19. Jimenez told Gurniak that she had dated De Santis from October through November 2005. Id . ¶ 114. She claimed that from June 1, 2006 to July 16, 2006, she "received numerous unsolicited text messages, telephone calls, and email messages" from De Santis, id. ¶ 116 (internal quotation marks omitted), and that De Santis had appeared at her place of work, id. ¶¶ 120, 122, and at her home in New Jersey, id. ¶ 126. She told Gurniak that she had instructed De Santis not to contact her. Id . ¶ 118. Jimenez claimed that De Santis caused "annoyance and alarm, harm to [her] emotional health, as well as fear that [her] employment was threatened." Id . ¶ 124 (internal quotation marks omitted). After filing a complaint with the police, Jimenez called De Santis and said that she would withdraw the complaint in exchange for money. Id . ¶¶ 20-22. Jimenez's allegations to the police "were intentionally falsified." Id . ¶ 108. Jimenez and De Santis had been dating from November 2, 2005 to July 16, 2006. Id . ¶ 115. She regularly initiated communications with him between June 1, 2006 and July 16, 2006, id. ¶ 117, and had never requested that he not contact her, id. ¶ 119.

At approximately 10:00 p.m. on July 30, 2006, Gurniak and his partner appeared at De Santis's apartment. Id . ¶¶ 23-26. They stated that De Santis had to accompany them to the precinct for questioning or he would be placed under arrest. Id . ¶¶ 44-48. Gurniak questioned De Santis about his relationship with Jimenez and her allegations of stalking and harassment. Id . ¶¶ 49-64. At 10:45 p.m. that evening, Gurniak arrested De Santis. Id . ¶ 69. De Santis was detained until 3:00 p.m the next day, July 31, 2006. Id . ¶ 73. He was arraigned on a criminal complaint charging two counts of Stalking in the Fourth Degree and 40 counts of Aggravated Harassment in the Second Degree. Id . ¶ 77. The Court issued a "restraining order" against De Santis, and he was released on his own recognizance. Id . ¶ 78.

On August 25, 2006, Jimenez met with Assistant District Attorney Ryan Connors. Id . ¶ 79. Jimenez told Connors that from June 1, 2006 to July 16, 2006, De Santis "engaged in a course of conduct directed at [causing Jimenez to fear] serious physical injury, the commission of a sex offense..., kidnapping, unlawful imprisonment and death...." Id . ¶ 128 (brackets omitted). As a result of these new accusations, De Santis was charged with five additional criminal counts. Id . ¶ 79. Jimenez's new allegations were also false. Id . ¶ 108. During a meeting with De Santis's criminal defense attorney, Connors admitted that he knew "that a sizable component of the criminal complaint had been falsified by Jimenez." Id . ¶ 80. Connors failed to serve a Bill of Particulars and failed to "surrender evidence" to De Santis. Id . ¶ 88. As a result, on April 26, 2007, the case against De Santis was dismissed on speedy trial grounds pursuant to N.Y. Crim. Proc. § 30.30. See id. ¶¶ 89, 91.

B. Procedural History

On April 26, 2010, De Santis filed the complaint in this matter. See Compl.[1] On August 29, 2011, all federal claims were dismissed, leaving only state law claims against Jimenez for false arrest, malicious prosecution, and intentional infliction of emotional distress. De Santis, 2011 WL 4005331, at *12; Compl. ¶¶ 147-64.[2] De Santis had attempted to serve Jimenez in 2010 but was unable to do so. See id. at *5-6; Plaintiff's Reply to the Court's Request for Additional Information Concerning Default Judgment, filed Oct. 5, 2011 (Docket #34), ¶ 11. At that time, the presiding district judge, Judge Naomi Reice Buchwald, indicated that even if Jimenez had been properly served dismissal might have been appropriate based on statute of limitations grounds. See De Santis, 2011 WL 4005331, at *6 n.2. Without ruling on the issue, she noted that "[t]he Second Circuit has recently stated that district courts may dismiss an action sua sponte on limitations grounds in certain circumstances, where the facts supporting the statute of limitations defense are set forth in the papers plaintiff himself submitted, '" id. (quoting Walters v. Indus. & Commercial Bank of China, Ltd. , 651 F.3d 280, 293 (2d Cir. 2011)), and that such an analysis would apply to De Santis's case because "the defendant has not even arguably waived the limitations defense, " id.

After the district court extended the time to effectuate service, see De Santis v. City of N.Y., 2011 WL 5109231, at *3 (S.D.N.Y. Oct. 27, 2011), a process server served Jimenez by leaving the summons at her residence with an individual identified as "John Doe, " who purportedly spoke to Jimenez by telephone while the process server was present, and mailing a copy to her last known address, see Affidavit of Service, filed Dec. 14, 2011 (Docket #36); Memorandum and Order, filed Jan. 5, 2012 (Docket #39). Jimenez failed to answer.

On August 22, 2012, the Clerk of Court issued a certificate of default, see Clerk's Certificate for Entry of Default Judgment, filed Aug. 22, 2012 (Docket #49), and De Santis filed a motion for a default judgment against Jimenez, see Notice of Motion for Entry of Default Judgment, filed Aug. 22, 2012 (Docket #50) ("Notice"); Memorandum of Law in Support of the Plaintiff's Motion for Entry of Default Judgment, dated Aug. 21, 2012 (annexed to Notice). On December 18, 2012, Judge J. Paul Oetken granted De Santis's motion. See Order, filed Dec. 18, 2012 (Docket #53). A document labeled "default judgment" was entered, see Default Judgment, filed Dec. 26, 2012 (Docket #56), and Judge Oetken referred the case to the undersigned for an inquest to determine damages, see Order of Reference to a Magistrate Judge, filed Dec. 18, 2012 (Docket #54).

By Order dated December 21, 2012, this Court directed De Santis to make submissions supporting his request for damages against Jimenez. See Scheduling Order for Damages Inquest, filed Dec. 21, 2012 (Docket #55), ¶¶ 1-2. A copy of the Order was mailed to Jimenez at her address of service. De Santis submitted an affirmation and Proposed Findings of Fact seeking "no less than" $322, 581.98 and "no more than" $442, 581.98 in damages. See Plaintiff's Proposed Findings of Facts [sic] and Conclusions of Law, filed Feb. 6, 2013 (Docket #57), ¶ 12.

On June 7, 2013, the Court issued an Order informing De Santis that, on the face of the complaint, his claims were untimely, and that the default judgment might be vacated and his case dismissed unless he could explain why his claims were not barred by the statute of limitations. See Order, filed June 7, 2013 (Docket #58) ("June 7 Order"). De Santis responded on June 21, 2013, arguing that a three-year statute of limitation applied and that Jimenez had forfeited any statute of limitations defense. See Declaration in Support of the ...


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