United States District Court, S.D. New York
For Plaintiff: Martha M. McBrayer, Esq., Jeremy J. Troxel, Esq., MORELLI ALTERS RATNER, PC, New York, NY.
ROBERT W. SWEET, D.J.
Plaintiff Jane Doe (the " Plaintiff" ) has moved for an entry of default judgment against defendant HRH Prince Abdulaziz Bin Fahd Alsaud (the " Prince" ) and an order for the payment of damages totaling $150,000,000 on the grounds that Defendant has failed to appear in this action and the time allowed for appearance has expired. Based on the reasoning below, Plaintiff's motion is denied.
Plaintiff filed her original complaint on January 25, 2013 (the " Complaint" ) naming as defendants the Prince, Saudi Oger Ltd. (" Saudi Oger" ) d/b/a Hariri Interests (" Hariri" ) and Mustapha Ouanes (" Ouanes" ). Non-party Hariri Interests moved to dismiss the complaint on April 1, 2013, and Plaintiff and Hariri Interests subsequently stipulated to dismiss the complaint against Hariri Interests with prejudice. Plaintiff
filed the First Amended Complaint (" FAC" ) on May 7, 2013, removing Hariri Interests from the lawsuit and withdrawing the negligent hiring claim against Saudi Oger and the Prince.
Plaintiff's claims in the FAC arise from the sexual assault and rape of Plaintiff by Ouanes. The FAC alleges that on January 26, 2010, Ouanes invited Plaintiff and her female friend to accompany him from a lounge in the West Village to his hotel room at the Plaza Hotel. (FAC ¶ 24.) At about 5:30 a.m., Plaintiff was drugged by Ouanes ( id. at ¶ 29), and awoke some time later to " realize [Ouanes] was raping her" ( id. at ¶ 30). In February 2012, after a two-week trial in New York (Manhattan) Criminal Court, Ouanes was convicted of rape and sexual abuse, and was sentenced to ten years in prison. ( Id. at ¶ ¶ 54-55.)
The FAC alleges claims of respondeat superior and negligent supervision and retention against the Prince.
To serve the Prince, Plaintiff delivered a Summons and the Complaint in an unmarked enveloped addressed to the Prince labeled as " Personal & Confidential" to a concierge at the Plaza Hotel, the Prince's alleged New York residence, on February 27, 2013. (Declaration of Martha M. McBrayer (" McBrayer Decl." ) ¶ 7.) The same day, the Summons and Complaint in an unmarked enveloped addressed solely to the Prince and labeled as " Personal & Confidential" was mailed to " c/o The Plaza Hotel, 770 5th Avenue, 4th Floor, New York, New York." ( Id. ¶ 8; see also ECF Dkt No. 4.) On July 15, 2013, Plaintiff again mailed a Summons and Complaint in an unmarked envelope addressed solely to the Prince and labeled as " Personal & Confidential" again to the Plaza Hotel. (McBrayer Decl. ¶ 10.)
The Prince did not respond to the Summons and Complaint with an Answer or a motion to the Complaint or the FAC. Subsequently, Plaintiff obtained a Clerk's Certificate pursuant to Rule 55(a) of the Federal Rules of Civil Procedure on October 4, 2013. Plaintiff subsequently moved for an entry of default judgment against the Prince on October 11, 2013. The Prince has not opposed or otherwise appeared in response to this motion or this action.
Plaintiff Failed To Properly Serve The Prince
Federal Rule of Civil Procedure 55 establishes the process for obtaining a judgment against the defaulting party. See Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). First, the Clerk of the Court, upon notification from the party seeking affirmative relief, notes the default of the party that has failed to plead or otherwise defend in the action. Fed.R.Civ.P. 55(a); Priestley, 647 F.3d at 504-05. Second, the plaintiff must seek a judgment under FRCP 55(b), following one of two procedures: The plaintiff may request that the Clerk of the Court enter judgment if the plaintiff's claim is for a sum certain (or a sum that can be made certain by computation), the defendant has failed to appear, and the defendant is neither a ...