First Horizon Bank v. Moriarty-Gentile

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons set forth in the attached decision and in Magistrate Judge Reyes' thorough and well-reasoned Report and Recommendation, the court adopts the R&R and grants plaintiff's motion for de fault judgment without prejudice to defendant's right to contest service, which is the sole remaining issue in this case. Defendant is granted until October 30, 2012 to obtain counsel and submit a sworn or affirmed denial of receipt of service that swears or affirms under penalty of perjury to specific facts to rebut the statements in Mr. Browne's affidavit. Upon receiving defendant's sworn or affirmed factual submission, the court will determine whether a traverse hearing is req uired and schedule a hearing, if necessary. If the court does not receive any sworn or affirmed submission from the defendant by October 30, 2012, the court will direct the Clerk of Court to enter judgment in favor of plaintiff and against defendant in the amount of $734,563.48, with an additional $131.13 per day accruing from the date of the R&R, August 17, 2012, through the entry of final judgment, plus post-judgment interest to the extent provided by law. Plaintiff shall serve a copy of this decision on the pro se defendant via overnight mail and file a certificate of service via ECF by September 28, 2012. Ordered by Judge Kiyo A. Matsumoto on 09/27/2012. (Ravi, Sagar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
FIRST HORIZON BANK, a division of
First Tennessee Bank,
ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiff,
-against-

10-CV-00289 (KAM)(RER)

CATHY MORIARITY-GENTILE a.k.a.
CATHERINE MORIARTY,
Pro Se Defendant.
----------------------------------X
MATSUMOTO, United States District Judge:
On January 22, 2010, plaintiff First Horizon Bank
(“plaintiff”) commenced this action against the pro se defendant
Cathy Moriarity-Gentile (“defendant”) alleging defendant’s
breach of an agreement for a home equity line of credit by
failing to pay certain amounts due to plaintiff.
1, Complaint ¶¶ 5-9.)

(See ECF No.

As discussed further below, defendant

appears to have been properly served, but failed to answer or
otherwise move in response to the complaint.

On January 10,

2012, the Clerk of the Court noted the default against defendant
pursuant to Federal Rule of Civil Procedure 55(a) (see ECF No.
25, Clerk’s Certificate), and plaintiff consequently filed a
motion, on notice to the defendant, for entry of a default
judgment on February 17, 2012 (see ECF No. 26, Motion for
Default Judgment).

Presently before the court is a Report and

Recommendation (the “R&R”) issued by Magistrate Judge Ramon E.

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Reyes Jr., recommending that the court grant plaintiff’s motion
and enter a default judgment awarding contract damages to
plaintiff in the amount of $734,563.48, with an additional
$131.13 per day accruing from the date of the R&R, August 17,
2012, through the entry of final judgment.

(See ECF No. 33, R&R

at 12.)
The R&R directed plaintiff to serve a copy of the R&R
on defendant (id. at 13), and plaintiff served defendant by
mailing a copy of the R&R to defendant’s residence in Dix Hills,
New York (the “Dix Hills Residence”) on August 17, 2012 (see ECF
No. 34, Affidavit of Service).1

As explicitly noted at the end

of the R&R, any objections to the R&R were to be filed within
fourteen business days of receipt of the R&R, or by September
12, 2012.2

(R&R at 12-13); see 28 U.S.C. § 636(b)(1); Fed. R.

Civ. P. 72(b)(2).
In a letter dated September 7, 2012, defendant timely
objected to the R&R on the sole basis that she was never
properly served with the summons and complaint in this action.
(See ECF No. 35, Defendant’s Objection (“Def. Obj.”) at 2.)

By

an Order dated September 14, 2012, the court scheduled a

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In an undated letter mailed on May 18, 2011 and docketed on May
31, 2011, defendant advised the plaintiff and the court that she should be
served at her Dix Hills Residence. (See ECF No. 20, Undated Pro Se Letter
from Defendant at 1.)
2

Pursuant to Federal Rule of Civil Procedure 6(d), the court
added three days to the period within which defendant was required to respond.

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traverse hearing for September 25, 2012 to determine whether
service of process was properly effected on the defendant, and
plaintiff served a copy of that Order on the defendant at her
Dix Hills Residence via FedEx priority overnight mail on
September 18, 2012.

(See ECF No. 36, Certificate of Service.)

By a Scheduling Order dated September 18, 2012, the court
rescheduled the traverse hearing from September 25 to September
27, 2012, and plaintiff served a copy of that Order on the
defendant at her Dix Hills Residence via FedEx priority
overnight mail on September 19, 2012.
Certificate of Service.)

(See ECF No. 37,

On September 20, 2012, plaintiff filed

a response to defendant’s objection and did not object to the
R&R.

(See ECF No. 38, Plaintiff’s Letter dated Sept. 19, 2012

(“Pl. Resp.”).)

A copy of plaintiff’s response to defendant’s

objection to the R&R was served on the defendant at her Dix
Hills Residence via regular first-class mail on September 20,
2012.

(See ECF No. 39, Certificate of Service.)
On the afternoon of September 26, 2012, the day before

the traverse hearing of which defendant presumably received
notice on September 20, 2012, defendant faxed a letter stating
that she “just received a Fed Ex package at [her] home this
morning at 9:38 AM” and that she is unable to appear at the
traverse hearing because she is “disabled with double shoulder
surgery and cannot drive right now.”

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(ECF No. 40, Defendant’s

Pro Se Letter Faxed on Sept. 26, 2012 at 1.)

Additionally,

defendant requested an adjournment of thirty days “in order to
find a lawyer and try to resolve this issue.”

(Id. at 1-2.)

LEGAL STANDARD
In reviewing a Report and Recommendation, the
district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.”

28 U.S.C. § 636(b)(1); accord Fed. R. Civ. P. 72(b)(3).

To the extent a party makes specific and timely written
objections to a magistrate judge’s findings and recommendations,
the district court must review de novo “those portions of the
report or specified proposed findings or recommendations to
which objection is made.”

28 U.S.C. § 636(b)(1); see also Fed.

R. Civ. P. 72(b)(3) (“The district judge must determine de novo
any part of the magistrate judge’s disposition that has been
properly objected to.”).

Where no objection to a Report and

Recommendation has been timely made, “‘a district court need
only satisfy itself that that there is no clear error on the
face of the record.’” Urena v. New York, 160 F. Supp. 2d 606,
609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp.
1186, 1189 (S.D.N.Y. 1985)); accord Jarvis v. N. Am. Globex
Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011).
The court is mindful “that the submissions of a pro se
litigant must be construed liberally and interpreted ‘to raise

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the strongest arguments that they suggest.’”

Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
“Nonetheless, even a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular
findings in the magistrate’s proposal, such that no party be
allowed a ‘second bite at the apple’ by simply relitigating a
prior argument.”

Pinkney v. Progressive Home Health Servs., No.

06-CV-5023, 2008 U.S. Dist. LEXIS 55034, at *2-3 (S.D.N.Y. July
21, 2008).
DISCUSSION
Here, the only objection to the R&R is defendant’s
unsworn statement that she was not properly served with the
summons and complaint in this action.

(See Def. Obj. at 2.)3

“‘Under New York law, a traverse hearing is required when there
exists a genuine issue of fact of whether service was properly
made.’”

U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-CV-

2522, 2012 U.S. Dist. LEXIS 29896, at *7 (E.D.N.Y. Mar. 5, 2012)
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This is not the first time that defendant contested service of
process in this action. In an undated letter mailed to the court on May 18,
2011 and docketed on May 31, 2011, defendant asserted, inter alia, that
service was deficient and directed plaintiff to serve her at her Dix Hills
Residence. (ECF No. 20, Undated Pro Se Letter from Defendant at 2 (“Please
consider directing [plaintiff’s counsel] and his Client to properly serve me
with whatever lawsuit they intend to bring against me so I can answer and
address the lawsuit with counsel and assert my just claims in a timely
manner.”).) Accordingly, on June 7, 2011, the court ordered plaintiff to
serve defendant personally with the summons and complaint at her Dix Hills
Residence, and plaintiff filed proof of personal service on plaintiff at the
Dix Hills residence on September 7, 2011. (See ECF No. 23, Affidavit of
Service.) Defendant then failed to answer or otherwise respond to the
complaint, which led to the Clerk’s entry of default on January 10, 2012 and
the instant motion for entry of a default judgment.

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(footnote omitted).

“Typically, a process server’s affidavit of

service establishes a prima facie case of proper service.”

Id.

at *8 (citing Old Republic Ins. Co. v. Pac. Fin. Servs. of Am.,
Inc., 301 F.3d 54, 57 (2d Cir. 2002)).

“A defendant’s sworn

denial of receipt of service, however, rebuts the presumption of
proper service established by the process server’s affidavit and
necessitates an evidentiary hearing.”
57.

Old Republic, 301 F.3d at

“[C]ourts have ‘considerable procedural leeway’ in deciding

how to address allegations of improper service and may conduct
an evidentiary hearing even without a sworn denial.”

U.S. Flour

Corp., 2012 U.S. Dist. LEXIS 29896, at *9 (citing Marine Midland
Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
Magistrate Judge Reyes found that defendant was
properly served with process in this action when, according to
the process server’s affidavit, defendant was personally served
with the summons and complaint at her Dix Hills Residence on
August 25, 2011.
of Service).)

(R&R at 4, 6-7 (citing ECF No. 23, Affidavit

In its response to defendant’s objection,

plaintiff submitted a second sworn affidavit of the process
server, Mr. Murray Browne, and an affidavit from Ms. Marylou
Nolan, a friend of Mr. Browne who was present when Mr. Browne
served the defendant.

(See ECF No. 38-2, Affidavit of Murray

Browne (“Browne Aff.”); ECF No. 38-3, Affidavit of Marylou
Nolan.)

Mr. Browne stated that he made two attempts to serve

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the defendant at her Dix Hills Residence.

(Browne Aff. ¶ 6.)

In the first attempt, in or around late July 2011, Mr. Browne
visited the Dix Hills Residence and was advised by a woman whom Mr. Browne now knows to be the defendant – that the
defendant could not be located at that address.

(Id. ¶ 7.)

In the second attempt, Mr. Browne arrived at the Dix
Hills Residence on August 25, 2011, this time with a photo of
the defendant, who is a fairly well-known film and television
actress.

(Id. ¶¶ 9-10.)

Mr. Browne recognized the woman who

came to the door as the defendant from the photo, but when Mr.
Browne asked the woman if she was “Cathy Moriarty-Gentile,” the
woman denied that she was the defendant.

(Id. ¶¶ 13-14.)

After

Mr. Browne advised the woman that he was there to serve legal
papers on the defendant and that there may be another attempt at
service by a sheriff, the woman at the door admitted that she
was indeed the defendant. (Id. ¶¶ 14-15.)

Mr. Browne then

handed a copy of the summons and complaint to the defendant, and
the two then spoke for approximately ten minutes about the
defendant’s role in the film “Raging Bull.”

(Id. ¶ 15.)

Specifically, the defendant told Mr. Browne about how her costar in the movie, Robert De Niro, gained weight for his role
and stayed in character during breaks in filming.

(Id.)

Mr.

Browne’s sworn affidavit of personal service establishes a prima
case of proper service that must be rebutted by the defendant.

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In her objection, which is unsworn, the defendant
stated in a conclusory fashion:

“I was not served as required

by law and previously directed by the court.”

(Def. Obj. at 2.)

The court recognizes that a traverse hearing is generally not
required where the defendant fails to provide a sworn denial of
receipt of service and “fails to swear to ‘specific facts to
rebut the statements in the process server’s affidavits.’”
Republic Ins. Co., 301 F.3d at 58.

Old

Nevertheless, the defendant

here is proceeding pro se and likely did not know she was
required to submit a sworn denial of receipt of service.
Accordingly, as the defendant requests thirty days to find
counsel to represent her in this action, the court will adjourn
the traverse hearing to provide defendant with an opportunity to
obtain counsel.

The court notes, however, that the defendant

has known about this action since at least May 2011 and that she
has waited more than a year to find counsel.

The defendant is

thus advised that her actions in this case appear to be dilatory
on their face and that further tactics to delay this case will
not be tolerated.
Other than Magistrate Judge Reyes’ finding that the
defendant was properly served with process in this action, the
parties have not raised any objections to any other portion of
the R&R.

The court therefore reviews all other portions of the

R&R for clear error.

Upon a careful review of the R&R and the

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record in this case, the court finds no clear error in the R&R
and hereby affirms and adopts it as the opinion of the court,
with the sole remaining issue in this case being whether
plaintiff was properly served with process.
CONCLUSION
For the reasons set forth above and in Magistrate
Judge Reyes’ thorough and well-reasoned Report and
Recommendation, the court adopts the R&R and grants plaintiff’s
motion for default judgment without prejudice to defendant’s
right to contest service, which is the sole remaining issue in
this case.

Defendant is granted until October 30, 2012 to

obtain counsel and submit a sworn or affirmed denial of receipt
of service that swears or affirms under penalty of perjury to
specific facts to rebut the statements in Mr. Browne’s
affidavit.

Old Republic Ins. Co., 301 F.3d at 58.

Upon

receiving defendant’s sworn or affirmed factual submission, the
court will determine whether a traverse hearing is required and
schedule a hearing, if necessary.

If the court does not receive

any sworn or affirmed submission from the defendant by October
30, 2012, the court will direct the Clerk of Court to enter
judgment in favor of plaintiff and against defendant in the
amount of $734,563.48, with an additional $131.13 per day
accruing from the date of the R&R, August 17, 2012, through the
entry of final judgment, plus post-judgment interest to the

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extent provided by law.

Plaintiff shall serve a copy of this

decision on the pro se defendant via overnight mail and file a
certificate of service via ECF by September 28, 2012.
SO ORDERED.
Dated:

September 27, 2012
Brooklyn, New York
___________/s/_________ _____
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

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