United States District Court, S.D. New York
For Cigotine L.L.C., Tyler Glover, Plaintiffs: Christopher Lloyd Brown, Brown & Rosen LLC, Boston, MA USA.
Steve Bayonne, Defendant, Pro se, Conshohocken, PA USA.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, United States District Judge.
Plaintiffs Cigotine LLC and Tyler Glover move for a default judgment against Defendants Steve Bayonne and The Hookey. (ECF No. 7.) Defendant Bayonne, acting pro se, filed an Affidavit in opposition to the motion for a default judgment and cross-moved for the dismissal of Plaintiffs' Complaint for lack of personal jurisdiction. (ECF No. 10.) This Court referred the matter to Magistrate Judge Debra Freeman. (ECF. No. 11.) Magistrate Judge Freeman issued a report recommending, among other things, that this Court deny both motions. (" Report" (ECF No. 13).) Plaintiffs' motion for a default judgment is DENIED, and Defendants' cross-motion to dismiss is DENIED without prejudice.
The Court may accept, reject, or modify, in whole or in part, the findings and recommendations set forth within the Report. See 28 U.S.C. § 636(b)(1). When parties object to a magistrate judge's Report, the Court must review de novo those portions of the Report to which objections are made. Id. The Court, however, is not required to conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Rather, it is sufficient that the Court " arrive at its own, independent conclusion[s]" regarding those portions to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). When no timely objections to a report are made, the Court may adopt the report if " there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citations omitted).
The Report informed the parties that they had fourteen (14) days from service of the Report to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). To date, no party has filed objections, and the time to object has expired.
Plaintiffs' motion for a default judgment is denied because Plaintiffs did not follow the necessary procedure to move for a default judgment, Defendant Bayonne has appeared and opposed Plaintiffs' motion on the grounds of insufficient service of process and lack of personal jurisdiction, and Defendant Hookey may not be a suable entity.
To arrive at a default judgment under Federal Rule of Civil Procedure 55(a), a plaintiff must first apply for a certificate of default from the Clerk of the Court. See Local Civil Rule 55.1. Once the Clerk of the Court has issued a certificate of default, upon application, a court may enter a default judgment against the defaulting party. See Fed.R.Civ.P. 55(b). Here, Plaintiffs' submission requesting a default judgment did not include a Clerk's Certificate. ( See Report at 3-4.) While noncompliance with local rules is not dispositive, see Yurkov-Shkolnik v. Allstate Life Ins. Co., No. 06 CIV. 5451 (RLC), 2008 WL 4093490, at *2 (S.D.N.Y. Sept. 2, 2008), it weighs in favor of denying Plaintiffs' motion.
Moreover, " before a court grants a motion for default judgment, it may first assure itself that it has personal jurisdiction over the defendant[s]." Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207. 213 (2d Cir. 2010). Plaintiffs have not demonstrated adequate service of process as to Defendant Bayonne under Federal Rule of Civil Procedure 4(e), nor as to Defendant Hookey under Federal Rule of Civil Procedure 4(h)--that is, assuming Defendant Hookey is a suable entity. See Fed.R.Civ.P. 4(e) (addressing the requirements for service of process on an individual); Fed.R.Civ.P. 4(h) (addressing the requirements for service of process on a " corporation, partnership, or association").
This Court grants Plaintiffs thirty (30) days to remedy the apparent insufficient service of process. They may do this by either demonstrating to this Court that the initial service was proper through an amended proof of service, or by effecting service and filing adequate proof thereof. If this Court does not receive legally sufficient proof of service as to both Defendants within thirty (30) days of this order, this action will be dismissed without prejudice as to one or both defendants. If Plaintiffs choose to comply with this order in the allocated time period, Defendant Bayonne's proffered Answer, (ECF No. 9), shall be deemed timely, and Defendant Hookey--assuming Plaintiffs demonstrate that it is a suable entity--shall be afforded an opportunity to timely respond to Plaintiffs' Complaint in compliance with Federal Rule of Civil Procedure 12. If either defendant is properly served, this Court may require limited jurisdictional discovery in the first instance as recommended by the Report. ( See Report at 11, 14.)
Plaintiffs' motion for a default judgment is DENIED. Defendants' cross-motion to dismiss is DENIED without prejudice.
Consistent with the above decision and order, this action shall be dismissed without prejudice unless Plaintiffs demonstrate within thirty (30) days of this order that Defendants have been properly ...