Opinion
23-CV-5619 (JGLC) (JLC)
09-29-2023
JUNIOUS NIELSEN, Plaintiff, v. J.C. PENNY COMPANY, INC., Defendant.
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
To the Honorable Jessica G. L. Clarke, United States District Judge:
Pro se plaintiff Junious Nielsen has moved both for a default judgment (Dkt No. 12) and for summary judgment (Dkt. No. 21), as defendant, J.C. Penny Company, Inc. (“JCPenney”), has not appeared in this action. As this case has been referred to me for both general pretrial supervision and all dispositive motions (Dkt. No. 24), I will address both motions here.
Presumably, Nielsen intends to bring this suit against the department store JC Penney, which he has misspelled in his complaint and other filings.
As to the motion for default judgment, Rule 55 of the Federal Rules of Civil Procedure provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Relatedly, the Local Rules of the Southern and Eastern Districts of New York require a motion for default judgment to be made only upon “issuance of a Clerk's certificate of default,” L.R. 55.2(a), and the Clerk may not issue such a certificate without submission of “an affidavit demonstrating that:
(1) the party against whom a notation of default is sought is not an infant, in the military, or an incompetent person;
(2) the party has failed to plead or otherwise defend the action; and
(3) the pleading to which no response has been made was properly served.”L.R. 55.1(b) (emphasis added).
The Clerk's Office has not issued a certificate of default because Nielsen has not yet made an adequate showing that JCPenney was properly served. Thus, the motion for default judgment may not be granted at this time.
Moreover, both motions should be denied at this juncture because the defendant has not yet been properly served. Rule 4 of the Federal Rules of Civil Procedure offers two pathways for proper service of a corporation. First, Rule 4(h)(1)(B) allows for a corporation to be served “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” An officer is a “high-ranking official,” and an agent is someone “invested with powers of discretion and must exercise judgment in his duties, rather than being under direct superior control as to the extent of his duty and the manner in which he executes it.” Kwan v. Schlein, 441 F.Supp.2d 491, 496 (S.D.N.Y. 2006) (quoting Grammenos v. Lemos, 457 F.2d 1067, 1073 (2d Cir. 1972)) (cleaned up).
Alternatively, Rule 4(e)(1) permits service in accordance with the “state law for serving a summons in an action” in “the state where the district court is located or where service is made.” New York, where this Court is located, permits service to corporations via “[p]ersonal service” “to an officer, director, managing or general agent, or cashier . . . or to any other agent authorized by appointment or by law to receive service,” and “first class mail, postage prepaid” “to the person or entity to be served.” Zaerpour v. JP Morgan Chase Bank, No. 21-CV-9680 (JPC) (JLC), 2022 WL 3159287 at *1 (quoting N.Y. C.P.L.R. § 311(a)(1), § 312-a(a)) (alteration in original). “When a corporation is served via first class mail, the summons and complaint must be accompanied by ‘two copies of a statement of service by mail and acknowledgment of receipt . . . with a return envelope.'” Id. (quoting § 312-a(a)). “New York also allows ‘a business corporation' to ‘be served pursuant to' New York Business Corporation Law sections 306 and 307, which permit service on a registered agent, by an otherwise permissible method, or on the New York Secretary of State, by personal service.” Id. (quoting § 311(a)(1)).
Here, Nielsen has submitted three proofs of service of his complaint (Dkt. Nos. 3-5), and one proof of service of his motion for summary judgment (Dkt. No. 25), but none complies with Rule 4. First, the forms filed at docket numbers three and four indicate service by regular mail, and without the requisite acknowledgments of receipt, which does not constitute proper service. See Lim Tung v. Deutsche Bank Tr. Co., No. 19-CV-5445 (RPK) (SJB), 2022 WL 471907, at *5 (E.D.N.Y. Jan. 11, 2022) (“corporations cannot be served via mail”); Zaepour, 2022 WL 3159287, at *2 (“even if [plaintiff] had served defendants by first class mail, his proof of service did not show that he included the other documents New York requires to be included in such service”). Second, the form filed at docket number four indicates that it was mailed to “Walmart Inc.,” which is not the named defendant in this action. Third, the document filed at docket number 5 indicates that personal service was accepted by an individual named Cathy Stahovic, an “Operations Manager,” at an address in Rochester, New York, and that she was “authorized to accept.” However, the filing does not offer any evidence that Stahovic “is an officer or similarly high-ranking official,” nor that she is “an agent authorized by appointment or by law” who has discretionary authority that would make her an agent of JCPenney, a corporation headquartered in Texas. Likewise, the form filed at docket number 25, although properly directed to JCPenney's headquarters and sent via first class mail, was not addressed “to the person or entity to be served,” see Zaerpour, 2022 WL 3159287 at *1, and is missing “acknowledgment of receipt.” See N.Y. C.P.L.R. § 312-a(a). There is thus insufficient evidence in the record to suggest that JCPenney ever received plaintiff's summary judgment motion papers.
In sum, as the Clerk of Court has not issued a certificate of default, and the docket sheet does not reflect that the defendant has been properly served with the summons and the complaint (or the summary judgment papers) the Court recommends denying both motions without prejudice to renewal.
Notably, a preliminary review of the complaint raises both venue and timeliness questions given that it appears plaintiff resides, and his former place of employment is located, in the Western District of New York and that plaintiff is complaining about an incident that allegedly occurred in 2014 and 2015. See Dkt. No. 1 at 5. However, “[t]aking into consideration . . . the Second Circuit's strong preference in favor of deciding cases on the merits,” see, e.g., Cho v. Osaka Zen Spa, No. 19-CV-7935 (ER), 2023 WL 5003570, at *8 (S.D.N.Y. Aug. 4, 2023), the service issues described herein should be resolved in the first instance before the merits issues are to be addressed.
Should Nielsen require assistance in complying with the rules for proper service, or any other legal assistance, he may contact the New York Legal Assistance Group's (“NYLAG”) Clinic for Pro se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this Court. The clinic is run by a private organization; it is not part of, or run by, the Court. It cannot accept filings on behalf of the Court, which must still be made by any Pro se party through the Pro se Intake Unit. To receive limited-scope assistance from the clinic, parties may complete the clinic's intake form on their computer or phone at: https://tinyurl.com/NYLAG-ProSe-OI. If parties have questions regarding the form or they are unable to complete it, they may leave a voicemail at (212) 659-5190. The Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. A copy of the flyer with details of the clinic is attached to this Report and Recommendation.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court. Any requests for an extension of time for filing objections must be directed to Judge Clarke.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
NYLAG
Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys
Free Legal Assistance for Self-Represented Civil Litigants in Federal District Court for the Southern District Of New York
The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a free legal clinic staffed by attorneys, law students and paralegals to assist those who are representing themselves or planning to represent themselves in civil lawsuits in the Southern District of New York. The clinic does not provide full representation. The clinic, which is not part of or run by the court, assists litigants with federal civil cases including cases involving civil rights, employment discrimination, labor law, social security benefits, foreclosure and tax.
To Contact the Clinic:
Call (212) 659-6190 or complete our online intake form (found here: https: / / tinyurl.com/NYLAG-ProSe-OI). A staff member will contact you within a few business days.
Those looking for assistance can also contact the clinic at the kiosk located across the hall from the pro se clinic office in the courthouse.
At this time, the clinic offers remote consultations only. Requests for inperson appointments will be reviewed on a case-to-case basis.
Location and Hours:
Thurgood Marshall United States Courthouse
Room LL22 40 Foley Square
New York, NY 10007
(212) 659 6190
Open weekdays
10 a.m. - 4 p.m.
Closed on federal and court holidays
Disclaimer: The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation.