Badalamenti v. Country Imported Car Corp. et al

Filing 44

ORDER denying 27 Motion for Default Judgment and denying 28 Motion for Default Judgment. Ordered by Judge Sandra J. Feuerstein on 2/22/2012. (Florio, Lisa)

FILEB

IN CLE;BI<'S OFFICE
U S DISTRICT C,:Ol,JRT E 0 NY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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22 Z012

ORDER
CV 10-4993 (SJF) (GRB)

-againstCOUNTRY IMPORTED CAR CORP. d/b/a
BMW OF THE HAMPTONS AND MINI OF
THE HAMPTONS, eta!.,
Defendant(s).

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SANDRA J. FEUERSTEIN, United States District Judge:
Before the court are plaintiff's motions for default judgment against defendants Vincent
Caruso and Michael Caruso. See Docket Entry ("DE") [27], [28]. For the reasons set forth
herein, the motions are denied.

DISCUSSION
Plaintiff John Badalamenti ("Badalamenti") filed his original Complaint with the court on
October 29,2010. See DE [I]. The Affidavit of Service filed by plaintiff indicates that the
original Complaint was personally served upon Vincent Caruso on November 2, 2010. DE [20].
There is no indication on the docket that plaintiff ever served Michael Caruso with the original
complaint.
On November 18, 20 I 0, prior to the filing of any answers or even the expiration of the
time within which to do so, plaintiff filed an Amended Complaint. See DE [3]. The Affidavit of
Service filed by plaintiff indicates that the Amended Complaint was served upon Michael Caruso
on January 5, 2011 by personal delivery to a person of suitable age and discretion at his place of

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LONG ISLAND OFFICE

JOHN BADALAMENTI,
Plaintiff(s),

F~S

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business and a subsequent mailing. See DE [2 I]. Plaintiff concedes that the Amended
Complaint was never served upon Vincent Caruso. See DE [4I].

Motion for default of defendant Vincent Caruso
On February 8, 201 I, plaintiff moved for a Clerk's entry of a default against Vincent
Caruso. DE [23]. On February 9, 20I I, a Clerk's Notation of Default was issued based upon the
November 2, 2010 service of the original summons and Complaint on Vincent Caruso. See DE
[24]. On July I5, 20I I, plaintiff moved for a defauitjudgment against Vincent Caruso. See DE
[27].
Plaintiffs motion seeking a default judgment against Vincent Caruso on the original
complaint must fail because, inter alia, the original complaint was superceded by the Amended
Complaint before the expiration of the time within which Vincent Caruso had to answer the
original complaint.

See,~

Lemon Tree Dev. LLC v. Philopatvr Corn., 20I I WL 6396624, at

• I (E.D.N.Y. Dec. 20, 20I I); Visnai v. United Homes of New York, Inc., 2009 WL 93 II 78, at •
2 (E.D.N.Y. Apri. 3, 2009). Having amended the Complaint prior to any default by Vincent
Caruso, plaintiff may not pursue a default judgment on the original pleading. See Lemon Tree
Dev., 20I I WL 6396624, at *2. Accordingly, plaintiff's failure to serve Vincent Caruso with the
Amended Complaint, as required by Rule 5(a)(l)(B) of the Federal Rules of Civil Procedure,
prevents the entry of a default against him. Therefore, plaintiffs motion seeking a default
judgment against Vincent Caruso is denied and the Clerk's entry of default against defendant
Vincent Caruso, DE [24], is set aside.
Plaintiff cites to one (I) unreported case from this Court, Finkel v. Hall-Mark Electrical

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Supplies Com., 2009 WL 3401747 (E.D.N.Y. 2009), for the proposition that he can pursue a
default judgment against Vincent Caruso based upon his failure to answer the original complaint,
DE [41], notwithstanding the failure to properly serve Vincent Caruso with the amended
complaint. However, Finkel is inapposite because, inter alia, in that case, the defendant had
already defaulted on the original complaint by the time the plaintiff filed his first amended
complaint naming additional defendant(s) and had also defaulted on the first amended complaint
when the plaintiff filed his second amended complaint adding additional defendant( s). Thus,
pursuant to Rule 5(a)(2), the plaintiff was not required to serve the amended complaints upon the
defaulting defendant.
In any event, the entry of a default judgment against Vincent Caruso is improper since it
has come to the Court's attention that he passed away on January 18,2012. See Bernhard v.
County Ford Ltd., No. 10-cv-4128 (ADS)(GRB). Accordingly, the parties are hereby directed to
file a motion for substitution pursuant to Rule 25(a) of the Federal Rules of Civil Procedure, or a
stipulation voluntarily withdrawing the claims against Vincent Caruso, on or before May 24,
2012.

Motion for default of defendant Michael Caruso
Unlike Vincent Caruso, Michael Caruso was properly served with the operative
complaint in this case, i.e., the amended complaint. Nonetheless, the motion for a default
judgment is defective because plaintiff failed to append a Clerk's entry of the default.
Rule 55( a) requires the clerk of the court to first enter a party's default prior to application
for a default judgment. Fed. R. Civ. P. 55( a); see also Meehan v. Snow. 652 F.2d 274, 276 (2d

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Cir. 1981) (noting that the procedures set forth in the Federal Rules "begin with the entry of a
default by the clerk upon a plaintiff's request"); Holness v. Nat'[ Mobile Television, Inc., 2011
WL 1059115, at *2 (E.D.N.Y. Jan. 6, 2011) (characterizing entry of default by clerk of the court
as one of the "procedural prerequisites" to be satisfied). The Local Civil Rules further illustrate
the requirement of the issuance of a Clerk's certificate of default preceding a motion for default
judgment. See Local Civ. R. 55.1, 55.2. Indeed, the rules require that the Clerk's certificate of
default be appended to the motion. Local Civ. R. 55.2. This technicality alone supports denial of
plaintiff's motion for a default judgment. See Monahan v. Pena 2009 WL 2579085, at *6 n.8
(E.D.N.Y. Aug. 18, 2009); Eisenberg v. Dist. Attorney ofCntv. of Kings, 847 F. Supp. 1029,
1033 (E.D.N.Y. 1994).
In pursuing a default against Vincent Caruso, plaintiff first sought entry of that
defendant's default; he did not do so regarding Michael Caruso. Instead of first seeking the
Clerk's entry of Michael Caruso's default, plaintiff instead proceeded directly to the filing of a
for default judgment against Michael Caruso and attached a proposed Clerk's Notation of Default
to the motion itself. See DE [28] and [41]. Although courts have, in some instances, overlooked
the technical failure to obtain the entry of default granted a default judgment motion, see. e.g.,
LaBarbera v. Fed. Metal & Glass Com., 666 F. Supp. 2d 341, 347 (E.D.N.Y. 2009), it is not
warranted here because, inter alia, the determination of damages in this case would be deferred
due to the presence of non-defaulting defendants against whom plaintiff alleges joint and several
liability based upon the breach of their respective fiduciary duties. See, ~Harvey v. Home
Savers Consulting Corp., 2008 WL 724152, at *I (E.D.N.Y. Mar. 17, 2008) (deferring a
determination of damages where there were non-defaulting defendants and the plaintiff sought

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joint and several liability "in order to avoid the problems of dealing with inconsistent damage
determinations."); Long Island Hous. Servs. v. Greenview Prop .. Inc .. 2008 WL 150222, at *2
(E.D.N.Y. Jan. 11, 2008) (noting that "[w]hen there are multiple defendants who may be jointly
and severally liable for damages alleged by plaintiff, and some but less than all of those
defendants default, the better practice is for the district court to stay its determination of damages
against the defaulters until plaintiff's claim against the nondefaulters is resolved").
Accordingly, plaintiffs motion seeking a default judgment against defendant Michael
Caruso is denied without prejudice to renewal upon compliance with the all applicable rules.

Conclusion
For the foregoing reasons, plaintiffs motions for a default judgment against Vincent
Caruso and Michael Caruso are denied.

SO ORDERED.

Sandra J. Feuerstein
United States District Judge
Dated: Central Islip, New York
FebruaryjJ.., 2012

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