Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gesualdi v. Reid

United States District Court, E.D. New York

February 27, 2017

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,
v.
J.H. REID, GENERAL CONTRACTOR, Defendant.

          Trivella & Forte LLP Attorneys for the Plaintiffs By: Gina E. Nicotera, Esq. Jonathan M. Bardavid, Esq., Of Counsel.

          Tobia & Sorger, LLC Attorneys for the Defendant By: Ronald L. Tobia, Esq., Of Counsel.

          DECISION AND ORDER

          ARTHUR D. SPATT United States District Judge.

         On 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 closed.

         Approximately 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 60(b)(1).

         For the reasons that follow, the Defendant's motion is denied in its entirety.

         I. Background

         A. Relevant Procedural History

         The 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.

         1. The Events Prior to Defense Counsel's Appearance

         On July 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 litigation costs.

         The Defendant was personally served with process on July 22, 2014, but did not file an answer or otherwise respond to the complaint.

         On 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 damages.

         On 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.

         On 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 notice.

         The following day, on September 3, 2014, the Clerk of the Court noted the Defendant's default.

         On 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.

         Between October 16, 2014 and August 12, 2015, the Defendant did not respond to the motion for a default judgment.

         On 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 judgment.

         On 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.

         In 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 warranted.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.