United States District Court, E.D. New York
THOMAS GESUALDI, LOUIS BISIGNANO, ANTHONY D'AQUILA, MICHAEL O'TOOLE, BENNY UMBRA, JOSEPH A. FERRARA, SR., FRANK H. FINKEL, MARC HERBST, DENISE RICHARDSON, and THOMAS F. CORBETT as Trustees and fiduciaries of the Local 282 Welfare Trust Fund, the Local 282 Pension Trust Fund, the Local 282 Annuity Trust Fund, the Local 282 Job Training Trust Fund, and the Local 282 Vacation and Sick Leave Trust Fund, Plaintiffs,
J.H. REID, GENERAL CONTRACTOR, Defendant.
Trivella & Forte LLP Attorneys for the Plaintiffs By:
Gina E. Nicotera, Esq. Jonathan M. Bardavid, Esq., Of
& Sorger, LLC Attorneys for the Defendant By: Ronald L.
Tobia, Esq., Of Counsel.
DECISION AND ORDER
D. SPATT United States District Judge.
August 2, 2016, pursuant to an Order of this Court, a default
judgment was entered against the Defendant J.H. Reid, General
Contractor (the “Defendant”), and this case was
two weeks later, on August 18, 2016, the Defendant filed a
motion for relief from that judgment under Federal Rules of
Civil Procedure (“Fed. R. Civ. P.”) 55(c) and
reasons that follow, the Defendant's motion is denied in
Relevant Procedural History
procedural history of this case has been set forth in detail
in prior Orders. Nevertheless, given the nature of the relief
sought, the Court finds that it will be useful to recount the
course of events that have led to this point.
The Events Prior to Defense Counsel's Appearance
9, 2014, the Plaintiffs Thomas Gesualdi, Louis Bisignano,
Anthony D'Aquila, Michael O'Toole, Benny Umbra,
Joseph A. Ferrara, Sr., Frank H. Finkel, Marc Herbst, Denise
Richardson, and Thomas F. Corbett, in their capacity as the
trustees and fiduciaries of the Local 282 Welfare Trust Fund,
the Local 282 Pension Trust Fund, the Local 282 Annuity Trust
Fund, the Local 282 Job Training Trust Fund, and the Local
282 Vacation and Sick Leave Trust Fund (collectively, the
“Plaintiffs”) filed a complaint alleging that the
Defendant violated Section 502(g)(2) of the Employee
Retirement Income Security Act of 1974, as amended, and
Section 301 of the Labor Management Relations Act of 1947 by
failing to make fringe benefit contributions in accordance
with the terms of a collective bargaining agreement. The
Plaintiffs sought damages under the statutes and the
agreement, including the unpaid contributions, prejudgment
interest, liquidated damages, attorneys' fees and
Defendant was personally served with process on July 22,
2014, but did not file an answer or otherwise respond to the
August 11, 2014, the Plaintiffs filed an amended complaint as
of right, which added a cause of action for injunctive
relief, namely, an order compelling the Defendant to submit
its books and records for an audit and to pay any amounts
that an audit may reveal to be due, together with related
August 13, 2014, the Plaintiffs served the amended complaint
by mailing it to the Defendant's corporate address. The
Defendant does not deny receiving the amended complaint.
September 2, 2014, after the Defendant failed to answer or
otherwise respond to the amended complaint, the Plaintiffs
requested that the Clerk of the Court note the
Defendant's default. The Plaintiffs served a copy of this
request by mailing it to the Defendant's corporate
address. Again the Defendant does not deny receiving this
following day, on September 3, 2014, the Clerk of the Court
noted the Defendant's default.
October 14, 2014, the Plaintiffs filed a motion for a default
judgment. That same day, copies of the motion and supporting
papers were served on the Defendant by first-class mail and
UPS next-day delivery. On October 16, 2014, the Court
referred the motion for a default judgment to United States
Magistrate Judge Gary R. Brown.
October 16, 2014 and August 12, 2015, the Defendant did not
respond to the motion for a default judgment.
August 12, 2015, Judge Brown issued a Report and
Recommendation (the “First R&R”),
recommending that the Court deny without prejudice the motion
for a default judgment. In particular, Judge Brown noted
that, under Fed.R.Civ.P. 5(a)(2), a pleading that asserts a
new claim for relief against a party who is in default must
be personally served on that party in accordance with Rule 4.
Therefore, Judge Brown concluded that, to the extent that the
amended complaint added a claim for injunctive relief; and
because the amended complaint had served by mail rather than
personally served, the Plaintiffs had not satisfied the
procedural prerequisites for entitlement to a default
September 16, 2015, the Court adopted the First R&R to
the extent that it recommended denial without prejudice of
the Plaintiffs' motion for a default judgment. However,
the Court found that good cause had been shown to extend,
nunc pro tunc, the time for service of the amended
complaint until August 17, 2015, and declined to vacate the
Clerk's entry of default.
reaching this conclusion, the Court reasoned that:
[T]he Defendant received notice of this action, and the facts
upon which it is premised, as early as July 9, 2014, when the
original complaint was properly served upon it. The amended
complaint added forms of relief, but did not materially alter
the facts giving rise to the lawsuit.
Nevertheless, in response to the complaint, the Defendant
failed to appear or take any steps to defend the claims
against it. Thereafter, on August 11, 2014, the Plaintiffs
mailed a copy of the amended complaint to the Defendant's
corporate address. Although this mailing does not suffice as
proper service under the Federal Rules, there is a strong
probability that it resulted in the Defendant receiving
notice that a second complaint had been filed against it. The
Defendant took no action in response to this mailing, or to
the Clerk's Notice of Default on September 3, 2014 and
the mailing of the Plaintiffs' motion for a default
judgment on October 14, 2014. Accordingly, it does not appear
that the Defendant will suffer any prejudice by this nunc
pro tunc extension.
In addition, the Plaintiffs acted promptly upon learning of
the error, and properly served the amended complaint upon the
Defendant within one week of the issuance of Judge
Brown's R&R. See PH Int'l Trading Corp. v.
Nordstrom, Inc., 07-cv-10680, 2009 U.S. Dist. LEXIS
27110, at *18-*19 (S.D.N.Y. Mar. 31, 2009) (granting
application to extend the time for service under analogous
provision of New York law where, as here, the plaintiff
served the relevant documents upon the defendant
“within weeks of discovering that it had not been
served”). Accordingly, the Court finds that an
extension of the time to serve the amended complaint is
Furthermore, because the Court deems the Plaintiffs'
August 17, 2015 service timely, the Defendant had until
September 7, 2015 to answer or otherwise respond to the
pleading. See Fed. R. Civ. P. 12(a). Having failed
to do so, the Court finds that the Defendant is in default.
See Kondaur Capital Corp. v. Cajuste, 849 F.Supp.2d
363 (E.D.N.Y. 2012) (“Even if the defendant is served
pursuant to a state law method of service [e.g.,
service upon the New York Secretary of State] . . ., the
Second Circuit has established that ‘under the plain
terms of Federal Rule of Civil Procure 12(a), a defendant has
twenty [now twenty-one] days from receipt of the summons to
file an answer unless a federal statute provides
otherwise' ” (quoting Belle ...