United States of America v. Farrell
MEMORANDUM OF DECISION & ORDER re 15 motion to vacate. On February 16, 2005, the Plaintiff filed a motion for default judgment against the Defendant. The Plaintiff filed proof of service of the moving papers. On April 1, 2005, the Clerk of the Cou rt noted the Defendant's default. On April 4, 2005, the Court granted the Plaintiff's motion for default judgment. Judgment was entered against the Defendant in the amount of $8,504.36, and the case was closed. On February 12, 2018, th irteen years after default judgment was entered against him, the Defendant moved to vacate the default judgment. For the following reasons, the Defendant's motion is denied. SO ORDERED by Judge Arthur D. Spatt on 3/8/2018. c/m to pro se deft. (Coleman, Laurie)
10:08 am, Mar 08, 2018
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
DECISION & ORDER
Michael T. Sucher, Esq.
Attorney for the Plaintiff
26 Court Street, Suite 2412
Brooklyn, NY 11242
Michael T. Sucher, Esq., Of Counsel
Pro Se Defendant
SPATT, District Judge:
On January 25, 2005, the Plaintiff United States of America (the “Plaintiff”) commenced
this action against the Defendant Peter Farrell (the “Defendant”), seeking payment on monies
owed by the Defendant to the United States Department of Education.
On the same day, the Plaintiff filed proof of service of the summons and complaint on the
On February 16, 2005, the Plaintiff filed a motion for default judgment against the
Defendant. The Plaintiff filed proof of service of the moving papers.
On April 1, 2005, the Clerk of the Court noted the Defendant’s default.
On April 4, 2005, the Court granted the Plaintiff’s motion for default judgment. Judgment
was entered against the Defendant in the amount of $8,504.36, and the case was closed.
On February 12, 2018, thirteen years after default judgment was entered against him, the
Defendant moved to vacate the default judgment. For the following reasons, the Defendant’s
motion is denied.
A. The Relevant Legal Standard
Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 60(b) empowers a court to
relieve a party from a final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.
FED. R. CIV. P. 60(b).
B. The Burden of Proof
Although he does not specifically cite Rule 60(b)(4), the Defendant claims that he was
never served with a summons or complaint. (See Def.’s Letter Mot. (ECF No. 15)). The court
construes this as a motion to vacate the default judgment on the ground that the default judgment
was void for want of personal jurisdiction. See Burda Media, Inc. v. Viertel, 417 F.3d 292, 297
(2d Cir. 2005). When the validity of service of process is raised in a motion to set aside a default
judgment, as in this case, the movant bears the burden of proof. Id. at 299. However, the Plaintiff
must demonstrate that defendant had actual notice of the original proceeding but delayed in
bringing the motion. Id.
C. Service of Process
In order to establish personal jurisdiction over a defendant, a plaintiff must show valid
service of process. See Omni Capital Int'l, Ltd. v. Rudolph Wolff & Co., 484 U.S. 97, 104, 108
S. Ct. 404, 98 L. Ed. 2d 415 (1987). Rule. 4(e) states that service can be obtained “pursuant to the
law of the state in which the district court is located.” FED .R. CIV. P. 4(e)(1).
The New York Civil Practice Law and Rules provide, in pertinent part, that service of
process may be made upon an individual “by delivering the summons within the state to the person
to be served.” N.Y. C.P.L.R. § 308(1).
In order to exercise personal jurisdiction over the Defendant, the Plaintiff must (1) have
served the Defendant in accordance with the requirements of state law; and (2) the assertion of
jurisdiction must comport with due process, which requires that service of process be “reasonably
calculated, under all the circumstances” to inform the defendant of the action and provide an
opportunity to be heard and respond. Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950).
D. As to the Validity of the Plaintiff’s Service.
Here, the process server’s sworn statement establishes that he served the Defendant
personally at his place of business on January 15, 2005. (ECF No. 4). The process server swore
that he spoke to the Defendant, and that he knew who the Defendant was from the summons,
complaint, and supplemental papers.
The summons and complaint were also mailed to his residence. (ECF No. 1). Of note, the
address to which the Plaintiff mailed the summons and complaint is the same address which the
Defendant still uses today. (See Def.’s Dec. 22 2017 Letter (ECF No. 11); Def.’s Jan. 26, 2018
Letter (ECF No. 13); Def.’s Letter Mot. Feb. 12, 2018 (ECF No. 15)).
The Plaintiff has thus established that the Defendant was both served with the summons
and complaint, and that he had knowledge of the action. Thus, having failed to respond after
having actual knowledge of the action, the burden of proof is on the defendant.
“[C]ourts require that the evidence in support of the motion to vacate a final judgment be
‘highly convincing.’” Kotlicky v. United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987)
(internal citation omitted). While the Court recognizes the difficulty of proving a negative, the
Defendant has nevertheless failed to proffer any evidence to meet his burden, other than conclusory
denials that he received notice of this lawsuit.
In light of the Plaintiff’s showing that the Defendant had actual knowledge of this lawsuit,
the Court denies the Defendant’s motion to vacate the default judgment for improper service.
For the reasons stated above, the Defendant’s motion to vacate the default judgment is
Dated: Central Islip, New York
March 8, 2018
______/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge
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