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Johnson v. New York University

United States District Court, S.D. New York

April 3, 2018

VANDYKE JOHNSON, Plaintiff,
v.
NEW YORK UNIVERSITY, et al., Defendants.

          OPINION AND ORDER

          GABRIEL W. GORENSTEIN, United States Magistrate Judge.

         Plaintiff Vandyke Johnson brings this action against New York University (“NYU”), the President of NYU Andrew Hamilton, the Trustees of NYU (“Trustees”), the Director of Admissions at NYU's School of Professional Studies (“SPS”) Cynthia Perez, and the SPS Director of Student Affairs Teresa Gargiulo. The Clerk of the Court has entered defaults against Hamilton, the Trustees, Perez, and Gargiulo (collectively, the “Moving Defendants”). The Moving Defendants now seek to vacate the entries of default.[1] For the reasons set forth below, the Moving Defendants' motion is granted.[2]

         I. BACKGROUND

         A. Facts Alleged in the Complaint

         On August 23, 2006, while Johnson was a student at NYU, he was arrested on purportedly false charges of grand larceny. See Complaint, filed Aug. 15, 2017 (Docket # 2) (“Compl.”), ¶ 2. These charges stemmed from an allegation that on that same date, Johnson searched the contents of an NYU Public Safety Officer's wallet, which had been left in a locker at an NYU sports facility. See Decision of New York University Judicial Board, dated July 5, 2007 (annexed as Ex. A to Jolley Aff.) (“Disciplinary Decision”), at I. NYU contends that a search of Johnson's locker at that facility revealed tools commonly used to commit burglary. See id.

         Although Johnson states he was acquitted of the grand larceny charges on May 9, 2007, see Compl. ¶ 2, NYU held a disciplinary hearing on June 28, 2007, to determine whether Johnson should be punished for the underlying conduct, see Disciplinary Decision at II. On July 5, 2007, a disciplinary panel presiding over that hearing - on which none of the Moving Defendants sat - found that Johnson's actions were in violation of NYU's policies, and accordingly dismissed Johnson from NYU, declared him persona non grata in all NYU buildings and facilities, prohibited him from applying for readmission until the Fall 2009 term at the earliest, and noted that the decision to readmit Johnson would be at the sole discretion of the Dean of SPS. See Disciplinary Decision at II.A, IV, V.

         On June 10, 2008, Johnson filed a federal lawsuit in the Southern District of New York against various defendants, including NYU and several of its employees, alleging in part that he was discriminated against on account of his race and asserting causes of action under 42 U.S.C. §§ 1981, 1983, 1985-88, and state law. See Compl. ¶ 2; Johnson v. City of New York, 669 F.Supp.2d 444, 447-49 (S.D.N.Y. 2009). None of the Moving Defendants were parties to that lawsuit. See id. at 447. In that action, Johnson asserted, among other things, that the NYU defendants denied him “Due Process of Law” during the disciplinary process, and conspired with other defendants to have Johnson “wrongfully arrested, prosecuted, and dismissed as a student.” Id. at 448-49 (internal quotation marks omitted). On November 12, 2009, the court dismissed all of Johnson's federal claims against the NYU defendants. See id. at 447. Eventually, the remaining federal claims against the other defendants were dismissed, and the court refused to exercise supplemental jurisdiction over Johnson's state law claims. See Johnson v. City of New York, 2010 WL 2292209 (S.D.N.Y. June 7, 2010); Judgment, Johnson v. City of New York, No. 08-5277 (SHS) (S.D.N.Y. June 14, 2010) (Docket # 58).

         Johnson's current lawsuit follows from his attempt to reapply to NYU in February 2017. Compl. ¶¶ 3, 25. By email from Perez dated June 28, 2017, NYU denied Johnson admission. See id. ¶¶ 3, 31; Email from Cynthia Perez to Vandyke Johnson, dated June 28, 2017 (annexed as part of Ex. A to Compl. at *25-26[3]). Accordingly, on August 15, 2017, Johnson commenced this action, asserting causes of action against all defendants under 42 U.S.C. §§ 1981 and 2000d et seq., New York Executive Law § 296(4) (“NYHRL”), and New York Civil Rights Law § 40-c (“NYCRL”), as well as asserting claims of breach of contract, breach of the covenant of good faith and fair dealing, unfair or deceptive trade practices in violation of New York General Business Law § 349(a), and intentional infliction of emotional distress. See Compl ¶¶ 41-84. As part of these allegations, Johnson asserts that the defendants discriminated against him on the basis of race both in its handling of the allegations against Johnson in 2006 and 2007, as well as in refusing to readmit him in 2017. See id. ¶¶ 12-40.

         B. Procedural History and Service

         The instant motion relates to Johnson's attempts to serve the Moving Defendants. On December 5, 2017, Hamilton, Perez, and the Trustees each received by mail a summons, complaint, and a form, issued pursuant to Fed.R.Civ.P. 4(e)(1) and N.Y. C.P.L.R. 312-a, by which they could acknowledge receipt of the summons and complaint by mail (the “Acknowledgment Form”). See Defs. Mem. at 4; see also Statements of Service by Mail and Acknowledgment of Receipt by Mail of Summons and Complaint, dated Nov. 7, 2017 (annexed as Ex. 1 to Miller Decl.) (“Acknowledgment Forms”); Chaudhary Aff. ¶ 2. The Acknowledgment Form stated that “if a defendant or defendant's agent returns the acknowledgment form within 30 days of receipt, the defendant will have 60 days from the date the defendant or defendant's agent mails or delivers to the U.S. Marshals Service the completed Acknowledgment . . . to file and serve an answer or other responsive pleading.” Acknowledgment Forms at *5, *7, *9, *11, *13. This statement accords with a Standing Order in the Southern District of New York addressed to N.Y. C.P.L.R. 312-a stating that

any defendant who returns a completed, dated, and signed Acknowledgment of Receipt of Service by Mail (“Acknowledgment Form”) within thirty days of receiving the form from the Marshals Service will have sixty days from the date the defendant or defendant's agent mails or delivers the completed Acknowledgment Form to the Marshals Service to file and serve an answer or motion in response to the complaint.

         Standing Order Extending Time to Answer After United States Marshals Service Effects Service on a Defendant by Mail Under N.Y. C.P.L.R. § 312-a, 13 Misc. 0438 (S.D.N.Y. Dec. 30, 2013) (“Standing Order”) (emphasis in original). By contrast, a defendant who is served personally and has not waived service has only 21 days after being served with a summons and complaint to respond. Fed.R.Civ.P. 12(a)(1)(A)(I).

         Notwithstanding their receipts of the summons, complaint, and Acknowledgment Form by mail, a U.S. Marshal personally served Hamilton, Perez, and the Trustees on December 19, 2017. See Chaudhary Aff. ¶ 3. Gargiulo, who had not previously received the summons, complaint, and Acknowledgment Form by mail, was also personally served on that date. See Id. ¶¶ 2-3. The proofs of service appearing on the ECF docket reflect personal service on these defendants on December 19, 2017. See Process Receipt and Return for Gargiulo, filed Jan. 11, 2018 (Docket # 8); Process Receipt and Return for Perez, filed Jan. 11, 2018 (Docket # 9); Process Receipt and Return for Hamilton, filed Jan. 11, 2018 (Docket # 10); Process Receipt and Return for Trustees, filed Jan. 11, 2018 (Docket # 11). Thus, Federal Rule of Civil Procedure 12(a)(1)(A)(I) would dictate that these defendants had to respond within 21 days, or by January 9, 2018.

         When the U.S. Marshal personally served some of the defendants on December 19, 2017, Ankita Chaudhary, the Administrator of Legal Operations at the NYU Office of General Counsel (“OGC”), asked the U.S. Marshal why service was being made personally given that service had already occurred by mail. Chaudhary Aff. ¶¶ 1, 4. The U.S. Marshal responded that the U.S. Marshals Service had kept no record of when the mailings were sent, and thus was performing personal service as a precaution. Id. ¶ 5. Chaudhary later called the U.S. Marshal to ask whether the Acknowledgment Forms received by mail could still be completed and returned. Id. ¶ 6. The U.S. Marshal replied affirmatively, and stated that returning and completing these forms would allow the defendants who did so to respond within the deadlines stated in those forms. Id. ¶ 7. Accordingly, on December 20, 2017, Chaudhary signed and dated the Acknowledgment Forms received by Hamilton and Perez, and returned them to the U.S. Marshals Service by overnight mail. Id. ¶ 8; see also UPS ...


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