Cankat v. Vanilla Cafe Pastry Garden, Corp.

Filing 21

ORDER REPORT AND RECOMMENDATION: Adopted without qualifications but with corrections as noted. Ordered by Judge Raymond J. Dearie on 3/10/2016. (Rodriguez, Lori)

s/ RJD

service of the Summons and Complaint on the defendant, as well as the legal authority for his
request for attorney's fees.
On August 6, 2015, having failed to receive any additional papers from plaintiff, the
Court Ordered plaintiff to submit supplemental papers by August I 0, 2015, and wanied plaintiff
that if he failed to do so, the Court would recommend that plaintiffs motion for default judgment
be denied, and that this case be dismissed for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41. Thereafter, on August 8, 2015, plaintiffs counsel requested an extension of
30 days to file supplemental papers. The Court granted this request, Ordering plaintiff to file his
supplemental papers by September 10, 2015. By letter dated September 10, 2015, counsel
requested another extension of time to file the supplemental briefing, explaining that a series of
complications with plaintiff's expert witness and several personal issues had prevented timely
preparation of the necessary materials. The Court again granted this request, Ordering plaintiff to
file all necessary paperwork by October 26, 201 S.
To the date of this Report and Recommendation, plaintiff has failed to file any documents
in response to this Court's Order. It is well established that failure to adequately prove proper
service of the complaint bars the entry of a default judgment. See. e.g., Orellana v. World
Courier. Inc., No. 09 CV 576, 2010 WL 3861002, at *2 (E.D.N.Y. Aug. 24, 2010) (denying
motion for default judgment against a defendant for whom plaintiff had not adequately proved
service); Cowder v. Admin. for Children and Families, No. 09 CV 628, 2010 WL 723440, at *2
(B.D.N.Y. Mar. 1, 2010) (denying motion for default judgment where service had not been
properly effected); Llaviganay v. Cipriani 110 LLC, No. 09 CV 737, 2009 WL 1044606, at *1
(S.D.N.Y. Apr. 14, 2009) (noting that inadequate proof of service bars entry of default
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judgment).
Given the Court's concerns over whether the defendant was properly served and had
adequate notice of the suit itself, the Court cannot recommend entry of a default against the
defendant. As such, the Court respectfully recommends that plaintiff's motion for a default
judgment be denied without prejudice to refile with all necessary docwnentation. Such
documentation would include proof that the defendant was actually served with all necessary
court tilings, as well as a memorandum of law and other documentation in support of counsel's
requested hourly rate of $400.00, which is higher than the standard range of attorneys' fees for
similar actions in this district. See, e.g., Shariff v. Alsaydi, No. 11 CV 6377, 2013 WL 4432218,
at *5 (E.D.N.Y. Aug. 15, 2013) (collecting cases to find that a $325.00 hourly rate appropriate
for a civil rights attorney with over a decade of experience); Access 4 All. Inc. v. West Sunrise
Realty Cotp., No. 06 CV 5487, 2008 WL 4453221, at *7 (E.D.N.Y. Sept. 30, 2008) (finding an
hourly rate of $385.00 "excessive and ... not in line with the hourly rates awarded in this
district" for an attorney with 31 years of experience); Brown v. Green 317 Madison. LLC, No. 11
CV 4466, 2014 WL 1237448, at •10 (E.D.N.Y. Feb. 4, 2014) (finding an hourly rate of$350.00

reasonable for a partner's time).
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. Failure
to file objections within the specified time waives the right to appeal the District Court's Order.
See 28 U.S.C. § 636(b)(l); FED. R. C1v. P. 6(a), 6(e), 72; Caidor v. Onondaga Cnty., 517 F.3d
60 I, 604 (2d Cir. 2008).
The Clerk is directed to send copies of this Order to the parties either electronically
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through the Electronic Case Filing (ECF) system or by mail.

SO ORDERED.
Dated: Brooklyn, New York
January 19, 2016

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Isl Cheryl L. Pollak
v -

~llak

,

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Cheryl L.
United States Magistrate Judge
Eastern District ofNew York

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