Barrett v. Onewest Bank, F.S.B.

Filing 9

ORDER - Pending before the Court is Defendant OneWest Bank's 8 motion to dismiss for insufficient service or, in the alternative, for an order directing pro se Plaintiff David Barrett to effect proper service of process. The foregoing are the Orders of the Court. Defendant is directed to serve a copy of this Order on the pro se Plaintiff within two days of the date of this Order and file proof of service with the Court. The Clerk of the Court is respectfully directed to accept $200 from Defendant and place it in an interest-bearing account. SO ORDERED by Judge Joanna Seybert on 1/12/12. C/ECF; Certified copy of Order forwarded to Carol McMahon, and Financial Office, Brooklyn. (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
DAVID BARRETT,
Plaintiff,
-against-

ORDER
11-CV-5509 (JS)(WDW)

ONEWEST BANK, F.S.B., as successor
in interest to IndyMac Federal Bank,
F.S.B.,
Defendant.
------------------------------------X
APPEARANCES
For Plaintiff:
David Barrett, pro se
38 Carrington Drive
East Northport, NY 11731
For Defendant:

Jason E. Brooks, Esq.
McCabe, Weisberg & Conway
145 Huguenot Street, Suite 499
New Rochelle, NY 10801

SEYBERT District Judge:
Pending before the Court is Defendant OneWest Bank’s
motion

to

alternative,

dismiss
for

an

for
order

insufficient
directing

service
pro

se

Barrett to effect proper service of process.

or,

in

Plaintiff

the
David

(Docket Entry 8.)

The Court will address the merits of that motion in due course.
In the meantime, the Court addresses two points.
First,

the

docket

entry

for

Defendant’s

motion

incorrectly suggests that the Court will hold a hearing on the
motion on February 13, 2012 at 10:00 a.m.

That is not the case.

Plaintiff’s opposition to Defendant’s motion is due on or before

February 13, but there is no need for either party to appear in
Court on that date.

If the Court decides to hear oral argument

on Defendant’s motion, it will notify the parties.

Relatedly,

Plaintiff is directed that he may ignore language in Defendant’s
motion stating that Plaintiff’s opposition must be filed three
days before February 13.
Second,
expenses

Defendant

associated

with

has

a

serving

duty

to

avoid

process.

FED.

unnecessary
R.

CIV.

P.

4(d)(1).

Defendant’s motion seeks, in the alternative, that

Plaintiff

be

directed

to

effect

proper

service.

The

Court

construes this request as an indication that Defendant would
refuse

to

waive

service

of

process

if

it

were

asked.

Accordingly, the Court orders the following: within five days of
the date of this Order, Defendant shall (1) provide Plaintiff
and the Court with the names and addresses of all of Defendant’s
officers,
authorized

managing
by

or

general

appointment

or

agents,
by

law

and
to

“any

receive

other

agent

service

of

process,” FED. R. CIV. P. 4(h)(1)(B); and (2) pay into Court $200,
which will be held in an interest-bearing account and used to
reimburse Plaintiff’s expenses incurred in making service should
the Court ultimately grant Defendant’s requested relief.

Also

within five days, Defendant may attempt to explain why the Court
should not impose on it the costs of service.

2 

See FED. R. CIV. P.

4(d)(2).

Any proffer of “good cause” does not relieve Defendant

of its obligation to pay $200 into Court in the first instance.
CONCLUSION
The foregoing are the orders of the Court.
is

directed

to

serve

a

copy

of

this

Order

on

Defendant

the

pro

se

Plaintiff within two days of the date of this Order and file
proof of service with the Court.
The Clerk of the Court is respectfully directed to
accept $200 from Defendant and place it in an interest-bearing
account.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

January
12 , 2012
Central Islip, New York

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