Milord v. Duran et al
ORDER: For the reasons set forth in the attached Memorandum and Order, plaintiff's notice of appeal, construed as a motion for reconsideration, is denied, and the court declines to set aside or modify Judge Bloom's February 4, 2014 Order in any respect. As plaintiff has not established proper service of process on defendants by the deadline set forth in Judge Blooms February 4, 2014 Order, the court respectfully defers to Judge Bloom to recommend dismissal without prejudice of the act ion or to issue further orders for pretrial purposes as she deems appropriate. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is den ied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to serve a copy of this Order on plaintiff and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 2/27/2014. (Tsai, Denise)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
GLADYS DURAN and DEUTSCHE BANK
NATIONAL TRUST COMPANY,
MATSUMOTO, United States District Judge:
On February 24, 2014, pro se plaintiff, Sonia Milord
(“plaintiff”), filed a “Notice of Appeal” to the United States
Court of Appeals for the Second Circuit of the February 4, 2014,
Order of the Honorable Lois Bloom.
Appeal dated 2/24/14.)
(ECF No. 22, Notice of
Judge Bloom’s February 4, 2014 Order
directed plaintiff to properly serve defendants and file proper
proof of service by February 21, 2014, or else risk dismissal of
the action without prejudice pursuant to Federal Rule of Civil
(ECF No. 20, Judge Bloom’s Order dated 2/4/14
The Court of Appeals does not process
appeals from orders of magistrate judges absent consent to
proceed before a magistrate judge.
See Bokel v. NYPD Property
Clerk Div., No. 06-CV-2849, 2007 WL 1755872, at *1 (E.D.N.Y.
June 15, 2007); LoSacco v. City of Middletown, 71 F.3d 88, 91
(2d Cir. 1995).
Under 28 U.S.C. Section 636, a district judge
may designate a magistrate judge to hear and determine any
pretrial matter, and may reconsider any pretrial matter "where
it has been shown that the magistrate judge's order is clearly
erroneous or contrary to law."
28 U.S.C. § 636(b)(1)(A).
Accordingly, plaintiff's "appeal" is treated as a motion for
reconsideration directed to the District Judge.
Entry dated 2/26/14.)
Pursuant to Federal Rule of Civil
Procedure 72(a) (“Rule 72(a)”), a party may serve and file
objections to a magistrate judge's order regarding pretrial
matters within fourteen days after being served with a copy of
Fed. R. Civ. P. 72(a).
The district judge in the
case "must consider timely objections and modify or set aside
any part of the order that is clearly erroneous or is contrary
Fed. R. Civ. P. 72(a).
As an initial matter, the court notes that plaintiff
has not complied with Rule 72(a) in two ways.
failed to object to Judge Bloom's Order within the fourteen day
The docket reflects that a copy of Judge Bloom's
February 4, 2014, Order was emailed to plaintiff on February 5,
Plaintiff's "notice of appeal" is dated February 24,
2014, five days after the time period permitted by the Federal
Rules to file objections expired.
Second, plaintiff fails to
identify the portion of the Order to which she objects, and does
not explain why any portion of the Order is clearly erroneous or
contrary to law.
Bokel, 2007 WL 1755872, at *2 (holding that
under similar facts, "[t]his Court cannot modify or set aside
any portion of [the magistrate judge's] order on the strength of
Even assuming, however, that plaintiff had properly
complied with Rule 72(a), the court stills decline to set aside
or modify Judge Bloom's February 4, 2014, Order.
reviewing the record, the February 4, 2014, Order, and the
relevant law, the court holds that Judge Bloom’s Order is
neither clearly erroneous nor contrary to law.
Rule of Civil Procedure 4 (“Rule 4”), and as directed by Judge
Bloom, plaintiff was required to serve individual defendant
Duran according to Rule 4(e) 1, and defendant Deutsche Bank
Rule 4(e), which governs service upon an individual, states:
Unless federal law provides otherwise, an individual — other than
a minor, an incompetent person, or a person whose waiver has been
filed — may be served in a judicial district of the United States
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint
to the individual personally;
(B) leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e).
National Trust Company according to Rule 4(h) 2.
Bloom issued prior orders, on December 18, 2013, and on January
10, 2014, directing plaintiff to comply with Rule 4 in effecting
service on defendants.
(See ECF No. 14, Order dated 12/18/13
(“12/18/13 Order”); ECF No. 18, Order dated 1/7/14 (“1/7/14
Given that plaintiff is proceeding pro se, a copy of
Rule 4 and a standard “Proof of Service” form were provided to
(See Docket Entry dated 1/13/14; 2/4/14 Order at 2
and Ex. 1.)
In addition, although Rule 4 requires a defendant
to be served within 120 days after the complaint is filed, Judge
Bloom extended the time period for service and allowed plaintiff
one final opportunity to properly serve defendants and file
proof of service by February 21, 2014.
Nevertheless, to date, plaintiff has failed to comply
with Rule 4.
Plaintiff maintains that proper service was made
on both defendants twice, and submits affidavits in support.
(See ECF No. 19, Letter dated 1/29/14 (“1/29/14 Ltr.”); ECF No.
16, “Affirmation of Service” dated 1/7/14; ECF No. 17,
“Affirmation of Service” dated 1/7/14.)
The affidavits of
Rule 4(h), which governs service on a corporation, states that a
corporation must be served in the manner prescribed by Rule 4(e)(1),
or by delivering copies of the summons and complaint to “an officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive service of process and – if the agent
is one authorized by statute and the statute so requires – by also
mailing a copy of each to the defendant.” Fed. R. Civ. P. 4(h).
Thus, service by mail alone is not sufficient.
service dated January 7, 2014 both state that service was
performed “by mailing to defendants.”
(ECF Nos. 16 and 17.)
Plaintiff’s January 29, 2014, letter states that “proper service
was made to both defendants” on November 11, 2013, but that due
to Judge Bloom’s January 10, 2014 Order, “I was prompted to
effect service a second time to the defendants, by mail. . . .
Consequently, we served the same upon the defendants by mail.”
(1/29/14 Ltr. at 1.)
Despite plaintiff’s misconceptions
regarding Rule 4, Rule 4 plainly does not permit service by mail
Moreover, the affidavits of service plaintiff attaches
to her letter do not show that defendants were properly served
pursuant to Rules 4(e) and 4(m).
(See ECF No. 19, Exs. A and
Rather than abide by Judge Bloom’s prior orders and
properly re-serve defendants by February 21, 2014, plaintiff
chose instead to file a notice of appeal, which, when construed
as a motion for reconsideration, was untimely filed.
it is clear that Judge Bloom’s February 4, 2014 Order was
neither clearly erroneous nor contrary to law.
plaintiff’s appeal is denied.
For the foregoing reasons, plaintiff’s notice of
appeal, construed as a motion for reconsideration, is denied,
and the court declines to set aside or modify Judge Bloom’s
February 4, 2014 Order in any respect.
As plaintiff has not
established proper service of process on defendants by the
deadline set forth in Judge Bloom’s Order, the court
respectfully defers to Judge Bloom to recommend dismissal
without prejudice of the action or to issue further orders for
pretrial purposes as she deems appropriate.
The court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith and therefore in forma
pauperis status is denied for the purpose of an appeal. Coppedge
v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of
Court is respectfully requested to serve a copy of this Order on
plaintiff and note service on the docket.
February 27, 2014
Brooklyn, New York
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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