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Sadis & Goldberg, LLP v. Banerjee

United States District Court, S.D. New York

March 30, 2017

SADIS & GOLDBERG, LLP, Plaintiff,
v.
SUMANTA BANERJEE, Defendant.

          MEMORANDUM ORDER

          Laura Taylor Swain United States District Judge

         Plaintiff Sadis & Goldberg, LLP (“Sadis & Goldberg” or “Plaintiff”) commenced this breach of contract action against Defendant Sumanta Banerjee (“Banerjee” or “Defendant”) in February 2014, following the dismissal without prejudice of an action seeking substantially the same relief on the same facts (Civil Action No. 13-CV-7355-LTS (the “2013 Action”)). Plaintiff sought to recover legal fees billed in connection with the defense of another action in which Plaintiff represented Banerjee. (See Complaint, Docket Entry No. 2.) The Court entered judgment in Plaintiff's favor by default in this action on April 28, 2015, and Defendant now moves to vacate that judgment.

         The Court has jurisdiction of this case under 28 U.S.C. § 1332.

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

         Background

         As extensively set forth in filings in connection with earlier motion practice in the instant action (see, e.g., Docket Entry No. 16), Plaintiff was repeatedly unsuccessful in attempting to serve Defendant in both this action and the 2013 Action. Plaintiff was first unsuccessful in its attempts to serve Plaintiff with the summons and complaint in the 2013 Action at a residential address in the United States that was associated with members of his immediate family-his wife was served but then sent a letter to a Sadis & Goldberg attorney, with a copy to the Clerk of this Court, denying that the Defendant lived at the address, asserting that the Defendant had returned to India to live and providing a street address in India. Plaintiff then unsuccessfully attempted Hague Convention service of the papers in the 2013 Action at the street address in India that had been provided by Defendant's wife; service was effectuated on Defendant's mother at “Flat 142B” of that address. Plaintiff's mother's Indian attorney wrote to the Indian Central Authority, denying that the Defendant lived in the unit at which she had received the papers, and Defendant's mother sent an affidavit to Plaintiff to the same effect. (See The 2013 Action, 13-CV-7355-LTS, Docket Entry No. 6; Civil Action No. 14-CV-913, Docket Entry No. 13-13.) Finally, Plaintiff unsuccessfully initiated Hague Convention service on Defendant with the summons and complaint in the instant action at the Indian street address, but the Indian Central Authority never responded to Plaintiff's request for service.

         Following these numerous failed attempts, Plaintiff applied to this court for authorization of an alternative form of service pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. On July 3, 2014, having considered and found sufficient Plaintiff's earlier efforts to serve Defendant, the Court authorized service by email through an email address that Defendant had used in connection with litigation in the District of Massachusetts. (See Docket Entry No. 16.)

         Following Defendant's failure to respond to the summons and complaint, Plaintiff applied for permission to engage in default judgment motion practice, and the Court authorized the motion practice. (See Docket Entry No. 21.) Plaintiff served its motion papers on Defendant by both email and “express mail” to what Plaintiff believed was the Defendant's “last known address in India, ” and, i.e., the one that had been provided by Defendant's wife to Plaintiff. (Docket Entry No. 23.) On January 12, 2015, Plaintiff filed a properly-supported motion for default judgment against Defendant and served Defendant by email and U.S. Postal Service international mail to the street address in India. (See Docket Entry Nos. 33-36.) Defendant did not respond to Plaintiff's default judgment motion.

         On February 6, 2015, the Court granted the motion, and directed Plaintiff to provide the Court with “affidavits attesting to the accuracy, reasonableness, necessity and pertinence of all work done pursuant to the terms of the parties' retention agreement, and all expenses incurred, for which Plaintiff seeks to recover compensation [and] evidence documenting, and affidavits attesting to the reasonableness and propriety of, any other costs, expenses or interest that it seeks to recover” by February 20, 2015. (Docket Entry No. 39.) Plaintiffs complied with the Court's deadline and filed evidentiary material on February 18, 2015, and served its filing on Plaintiff by email and international mail. (See Docket Entry Nos. 40, 41.) Defendant was directed to file any opposition by March 13, 2015. (See Docket Entry No. 39.) He did not respond. On April 9, 2015, the Court awarded “Plaintiff $379, 652.37 in fees associated with its prior representation of Defendant, as well as prejudgment interest, calculated at a rate of 1% per month for each invoice not paid within 30 days of receipt, ” and denied “Plaintiff's request for $106, 613.50 in fees associated with motion practice in this case” in a memorandum order. (Docket Entry No. 43.) Judgment in favor of Plaintiff was entered on April 28, 2015, and the case was terminated. (Docket Entry No. 46.)

         One year later, on April 27, 2016, Defendant initiated the instant motion practice pursuant to Federal Rule of Civil Procedure 60(b), seeking an order declaring the default judgment invalid as based on an invalid method of service. (See Docket Entry No. 48.) Defendant admits that the email address that had been used for service belongs to him and is one that he has used, but asserts that he had switched, because of excessive “spam, ” to using his wife's email address in the Massachusetts litigation prior to the service of the summons and complaint in this action. (See id.) He alleges that he only belatedly learned of the instant action and the default judgment entered by this Court because a “friend” brought them to his attention and that he subsequently went on to the Court's online e-filing system and read the papers. (See Docket Entry No. 65.)

         Defendant asserts that he wishes to defend against Plaintiff's claim, principally on the ground that the parties had entered into an agreement under which the subject debt was to have been satisfied by Plaintiff's foreclosure on Defendant's interest in an entity rather than by collection of a money judgment. (See Docket Entry Nos. 48, 65, 71.) Defendant proffers a copy of the agreement upon which he relies for his contention that Plaintiff's pursuit of a money judgment is precluded. (See Docket Entry No. 48, at 46-47; see also Complaint, Docket Entry No. 2, Ex. C.) Defendant also proffers that the street address in India at which Plaintiff attempted to serve him is valid, but that he has not received documents Plaintiff claims to have sent to him there by Federal Express. (See Docket Entry No. 48, at 10-12.)

         Plaintiff opposes the motion, contending that email service pursuant to the Court's July 3, 2014, order was proper, that Defendant's putative defense is meritless and that his denial of receipt of process is mendacious. Defendant has made additional submissions.

         The Court has reviewed thoroughly all of the parties' submissions in connection with this Rule 60(b) motion practice, as well as the submissions upon which the Court granted the order authorizing ...


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