Gunderson Amazing Fireworks, LLC v. Merrick Bank et al

Filing 164

MEMORANDUM & ORDER denying 157 Motion for Joinder; denying 158 Motion for Joinder; For the foregoing reasons, Plaintiffs' motion for joinder of Jetpay Merchant Services, LLC (Docket Entries 157, 158) is DENIED. Should Plaintiffs wish to proceed against Pinnacle, they are directed to properly serve the Second Amended Complaint on Pinnacle and file proof of service within thirty (30) days of the date of this Memorandum and Order. Should Plaintiffs fail to do so, the claims against Pinnacle will be dismissed without prejudice, and the case will be closed. See FED. R. CIV. P. 4(m). So Ordered by Judge Joanna Seybert on 3/30/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
GUNDERSON AMAZING FIREWORKS, LLC,
Plaintiff,
-againstMERRICK BANK, MERRICK BANK
MERCHANT SERVICES DIVISION,
CARDWORKS, L.P., and PINNACLE
PROCESSING GROUP, INC.,

MEMORANDUM & ORDER
12-CV-3869(JS)(AKT)

Defendants.
---------------------------------------X
FIREWORKS UNLIMITED, LLC,
Plaintiff,
-againstMERRICK BANK, MERRICK BANK
MERCHANT SERVICES DIVISION,
CARDWORKS, L.P., and PINNACLE
PROCESSING GROUP, INC.,

12-CV-3871
(Member case)

Defendants.
---------------------------------------X
KENACO SALES, LLC,
Plaintiff,
-againstMERRICK BANK, MERRICK BANK
MERCHANT SERVICES DIVISION,
CARDWORKS, L.P., and PINNACLE
PROCESSING GROUP, INC.,
Defendants.
---------------------------------------X

12-CV-3872
(Member case)

---------------------------------------X
FIREWORKS CENTER 25, LLC,
Plaintiff,
-against-

12-CV-3873
(Member case)

MERRICK BANK, MERRICK BANK
MERCHANT SERVICES DIVISION,
CARDWORKS, L.P., and PINNACLE
PROCESSING GROUP, INC.,
Defendants.
---------------------------------------X
LADY LUCKS WHOLESALE & RETAIL
FIREWORKS, LLC,
Plaintiff,
-against-

12-CV-4019
(Member case)

MERRICK BANK, MERRICK BANK
MERCHANT SERVICES DIVISION,
CARDWORKS, L.P., and PINNACLE
PROCESSING GROUP, INC.,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Courtney K. Davy, Esq.
Law Office of Courtney Davy LLP
305 Broadway, Suite 1400
New York, NY 10007
For Defendants:
Merrick Bank
Corporation,
Merrick Bank
Merchant Services
Division and
Cardworks, L.P.
Dirk O. Julander, Esq.
Julander, Brown & Bollard
9110 Irvine Center Drive
Irvine, CA 92618

2

Jesse Strauss, Esq.
Strauss Law PLLC
305 Broadway, 9th Floor
New York, NY 10007
For Pinnacle
Processing
Group, Inc.

No appearance

SEYBERT, District Judge:
Plaintiffs Gunderson Amazing Fireworks, LLC, Fireworks
Unlimited, LLC, Kenaco Sales, LLC, Fireworks Center 25, LLC and
Lady

Lucks

Wholesale

&

Retail,

Fireworks

LLC

(collectively

“Plaintiffs”) commenced this action against Defendants Merrick
Bank

Corporation,

Merrick

Bank

Merchant

Services

Division,

Cardworks, L.P., and Pinnacle Processing Group, Inc. (collectively
“Defendants”) alleging that Defendants violated certain merchant
agreements between the parties (the “Merchant Agreements”).
generally Sec. Am. Compl., Docket Entry 82.)

(See

Currently pending

before the Court is Plaintiffs’ motion to join Jetpay Merchant
Services, LLC (“Jetpay”) as a party to this action (Pls.’ Mot.,
Docket Entries 157, 158).1

For the following reasons, Plaintiffs’

motion is DENIED.

1

Plaintiffs filed their motion as two separate docket entries.
3

BACKGROUND
I.

Factual Background
Plaintiffs

consumer fireworks.”

are

“retailer[s]

and/or

wholesaler[s]

(Consol. Sec. Am. Compl. ¶ 13.)

of

In 2010,

Plaintiffs entered into the Merchant Agreements with Defendants
and their agents, pursuant to which Defendants agreed to authorize
and process Plaintiffs’ credit card transactions.
Am. Compl. ¶¶ 14-20.)

(Consol. Sec.

In other words, when a customer purchased

fireworks from one of the Plaintiffs, Defendants would process the
payment and after deducting processing fees, deposit the balance
in

Plaintiffs’

accounts.

(Consol.

Sec.

Am.

Compl.

¶

22.)

Plaintiffs allege that after Jetpay began performing processing
services on Defendants’ behalf in March 2012, they began receiving
complaints from customers about duplicate and unauthorized charges
to their credit cards.
Plaintiffs

claim

that

(Consol. Sec. Am. Compl.
the

pattern

of

¶¶ 23-24.)

unauthorized

charges

constitutes a material breach of the Merchant Agreements and that
they

“suffered

substantial

losses,

injuries

and

continual

disruptions to their various business operations” as a result of
Defendants’ conduct. (Consol. Sec. Am. Compl. ¶¶ 25, 30.)
II.

Procedural History
Plaintiffs Gunderson Amazing Fireworks, LLC, Fireworks

Unlimited, LLC, Kenaco Sales, LLC and Fireworks Center 25, LLC
filed Complaints against Defendants on August 3, 2012.
4

(Compl.,

12-CV-3869, Docket Entry 1; Compl., 12-CV-3871, Docket Entry 1;
Compl., 12-CV-3872, Docket Entry 1; Compl., 12-CV-3873, Docket
Entry 1.)

Plaintiff Lady Lucks Wholesale & Retail Fireworks filed

its Complaint on August 13, 2012.
Entry 1.)

(Compl., 12-CV-4019, Docket

Because the cases involved similar allegations, they

were consolidated under Docket Number 12-CV-3869 on February 11,
2013.

(Consolidation Order, Docket Entry 27.)

After the Court

granted Defendants’ motion to dismiss and granted Plaintiffs leave
to file a consolidated amended complaint, Defendants requested
that the Court stay the case because Pinnacle Processing Group,
Inc. (“Pinnacle”) filed for bankruptcy.

(Sept. 2013 Order, Docket

Entry 65; Stay Mot., Docket Entry 66.)

The Court granted the

request, and the case was administratively closed on October 3,
2013.

(Oct. 2013 Order, Docket Entry 67.)
On February 2, 2015, Plaintiffs advised the Court that

Pinnacle’s bankruptcy case was dismissed and requested that the
case be re-opened.

(Pls.’ Mot. to Reopen, Docket Entry 68.)

The

Court granted the motion and directed Plaintiffs to file an Amended
Complaint, which Plaintiffs filed on February 26, 2015.

(Feb.

2015 Order, Docket Entry 69; Consol. Am. Compl., Docket Entry 70.)
On

April

29,

2015,

Magistrate

Judge

A.

Kathleen

Tomlinson so ordered a Stipulation on Consent for Plaintiffs to
serve a consolidated second amended complaint, (Order, Docket
Entry 81), which was filed on May 8, 2015. The Consolidated Second
5

Amended Complaint asserts five causes of action: (1) breach of
agreement, (2) unfair business practice, (3) breach of fiduciary
duty, (4) indemnification and (5) negligent performance under
Washington

law.2

(See,

generally,

Consol.

Sec.

Am.

Compl.)

Defendants answered the Second Amended Complaint on May 28, 2015
and asserted counterclaims against Plaintiffs and Sandra K. Kueck,
Kent Herzog, and Monty Kapchinsky, guarantors of the Merchant
Agreements.

(Answer, Docket Entry 85.)

The parties proceeded

with discovery.
Separately, in March 2015, Defendants’ counsel withdrew
as

counsel

for

Pinnacle.

(Minute

Order,

Docket

Entry

76.)

Plaintiffs subsequently filed a motion for a default judgment
against Pinnacle, and the motion was denied without prejudice.3
(Pls.’ Default Mot., Docket Entry 98; March 2016 Order, Docket
Entry 142.)

Plaintiffs have not taken any further action against

Pinnacle, and it remains unrepresented.
On June 10, 2016, Plaintiffs filed a motion to join
Jetpay as a defendant.

(See, Pls.’ Mot.)

On June 13, 2016,

With the exception of Gunderson Amazing Fireworks’ Merchant
Agreement, the Merchant Agreements provide that any dispute is
governed by Ohio law. Gunderson’s Merchant Agreement provides
that any disputes are governed by Washington law. (Sept. 2013
Order, at 3.) Plaintiffs allege that the Merchant Agreements
contain a forum selection clause designating New York as the
proper venue for any dispute. (Consol. Sec. Am. Compl. ¶ 12.)
2

The Court’s March 2016 Order also vacated the Certificate of
Default against Pinnacle. (March 2016 Order.)
3

6

Defendants advised the Court that they did not oppose the motion.
(Defs.’ Resp., Docket Entry 159.)
2016.4

Discovery closed on June 27,

On September 16, 2016, while the motion to join Jetpay was

pending, Plaintiffs filed a Stipulation of Voluntary Dismissal
dismissing Defendants Merrick Bank, Merrick Bank Merchant Services
Division, and Cardworks, L.P. from the case.

(Stip., Docket Entry

162.)
III. Plaintiffs’ Motion
Plaintiffs seek an order pursuant to Federal Rules of
Civil

Procedure

15(a)(2),

Consolidated

Second

defendant.5

(Not.

16(b)

Amended
of

Mot.,

and

20(a)(2)

Complaint
Docket

to

Entry

to

add
158.)

amend

Jetpay

the

as

a

Plaintiffs

acknowledge that discovery is in a “late stage” but contend that
Jetpay is a “crucial and necessary party to this action” because
Jetpay is the entity responsible for the unauthorized charges that
harmed Plaintiffs.

(Pls.’ Br., Docket Entry 157, at 2, 5.)6

They

argue that there is no prejudice to Defendants since they are not

The parties’ deadline to complete discovery was June 27, 2016,
and no further extensions were requested. (Apr. 2016 Order,
Docket Entry 156.)
4

Because Plaintiffs’ motion does not seek relief under Federal
Rule of Civil Procedure 19, the Court need not determine whether
Jetpay is a required party.
5

The Court will refer to the pagination assigned by the
Electronic Case Filing System when citing to Plaintiffs’ brief
in support of their motion.
6

7

opposing the motion.

(Pls.’ Br. at 6.)

Additionally, they argue

that there is a valid explanation for the delay in making this
application because the extent of Jetpay’s involvement was not
clear at the time the original Complaint was filed.

(Pls.’ Br. at

9.) However, Plaintiffs concede that they became aware of Jetpay’s
role during discovery and did seek joinder at that time.
Br. at 7-9.)

(Pls.’

It was only after Plaintiffs retained new counsel

that they sought joinder of Jetpay.7

(Pls.’ Br. at 9.)

In that

regard, Plaintiffs argue that they should not be penalized for
former counsel’s failure to join Jetpay.
Plaintiffs

also

maintain

that

adding

(Pls.’ Br. at 14-15.)

Jetpay

would

not

delay

resolution of the dispute in light of the fact that a trial date
has not been set.

(Pls.’ Br. at 10-11.)

Finally, Plaintiffs’

argue that they have not shown any bad faith in pursuing the
instant motion and that the proposed amendment would not be futile.
(Pls.’ Br. at 11-12.)
After Plaintiffs filed the Stipulation of Voluntary
Dismissal,

the

Court

ordered

Plaintiffs

to

provide

authority

supporting their position that joinder is proper under these
circumstances. (Elec. Order, Feb. 3, 2017.) On February 10, 2017,

Plaintiffs were previously represented by Donald Creadore, Esq.
On April 11, 2016, the Court granted Plaintiffs’ request for a
substitution of counsel, and thereafter, Plaintiffs have been
represented by Courtney Davy, Esq. (April 11, 2016 Order,
Docket Entry 145.)
7

8

Plaintiffs confirmed that they continue to seek joinder of Jetpay
and argued that joinder is permissible because Pinnacle is still
a party to the action.

(Pls.’ Feb. 2017 Ltr., Docket Entry 163.)

Plaintiffs did not cite any specific authority supporting their
position.
IV.

The Proposed (Consolidated) Third Amended Complaint8
The

Proposed

(Consolidated)

Third

Amended

Complaint

(“PTAC”) alleges that Jetpay experienced a series of financial
difficulties and losses in 2012 which led the company to overcharge
Plaintiffs’ customers.

(PTAC, Docket Entry 157-1, ¶¶ 18-23.)

According to Plaintiffs, in early 2012, Jetpay began overcharging
customers to increase its profits and stave off financial ruin.
(PTAC ¶¶ 17, 23.)

Plaintiffs allege that Jetpay’s financial

situation was so dire that it filed for bankruptcy in March 2012,
after which Universal Business Payment Solutions (“Universal”)
offered to purchase Jetpay.

(PTAC ¶¶ 21-22.)

The date of the

alleged sale of Jetpay to Universal was July 6, 2012. (PTAC ¶ 22.)
Plaintiffs allege that in an effort to look more attractive to
Universal, Jetpay fraudulently overcharged hundreds of customers

The PTAC names Jetpay, LLC and Jetpay Merchant Services LLC in
the caption but does not otherwise mention Jetpay LLC, including
in the section titled “The Parties.” (PTAC ¶¶ 1-9.)
Additionally, Plaintiffs’ Notice of Motion and Memorandum of Law
only request that Jetpay Merchant Services LLC be joined as a
defendant. Therefore, the Court declines to consider whether
Jetpay, LLC should be joined as a defendant in this action.
8

9

over the July 4th holiday.

(PTAC ¶¶ 23-24, 29.)

Plaintiffs claim

that the duplicative charges generated additional transaction fees
that increased Jetpay’s cash flow.

(PTAC ¶¶ 24, 29.)

Plaintiffs

allege that they have suffered “financial losses, losses and
interruptions in business, and los[s] [of] faith and respect of
many of their regular customers.”

(PTAC ¶ 31.)

The specific claims asserted in the PTAC are difficult
to discern.

The PTAC makes no mention of the alleged breaches of

the Merchant Agreements.
RICO claim.

Rather, it appears to assert a civil

Under the section labeled “jurisdiction,” the PTAC

states, “Jurisdiction over the claims subject to this dispute
arises

under

federal

question

28

U.S.C.

§ 1331

in

that

the

defendant has violated 18 U.S.C. § 1344, 18 U.S.C. § 1343 and 18
U.S.C. § 1964.”

(PTAC ¶ 10.)

elements

and

of

bank

wire

These statutes set forth the

fraud

and

the

civil

remedies

for

violations of the civil RICO statute. See 18 U.S.C. §§ 1343, 1344,
1964.

However, the PTAC only contains headings for four causes of

action: (1) unfair business practice, (2) fraud, (3) negligence,
and (4) breach of fiduciary duty.

(PTAC ¶¶ 32-46.)

Because

Plaintiffs have affirmatively pled that this dispute arises out of
violations of the above-referenced federal statutes, the Court
will construe the PTAC as asserting a civil RICO claim.

10

DISCUSSION
I.

Legal Standard9
Rule 20 of the Federal Rules of Civil Procedure provides

that a party may be joined as a defendant in a pending action if
(1)

“any

right

to

relief

is

asserted

against

them

jointly,

severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or
occurrences” and (2) “any question of law or fact common to all
defendants will arise in the action.”

FED. R. CIV. P. 20(a)(2).

Federal Rule of Civil Procedure 21 is also instructive here.

Rule

21 allows the court to add or drop a party “at any time[ ] on just
terms.”

FED. R. CIV. P. 21.

“Under Rule 21, courts must consider

judicial economy and their ability to manage each particular case,
as well as how the amendment would affect the use of judicial
resources, the impact the amendment would have on the judicial
system, and the impact it would have on each of the parties already
named in the action.”

Davidowitz v. Patridge, No. 08-CV-6962,

2010 WL 1779279, at *4 (S.D.N.Y. Apr. 23, 2010).

The “plaintiff

bears the burden of demonstrating that joinder . . . is warranted.”
Romano v. Levitt, No. 14-CV-518A, 2017 WL 193502, at *2 (W.D.N.Y.
Jan. 18, 2017).

Because the Court did not specify a deadline for adding parties
to this action, Federal Rule of Civil Procedure 16 is not
controlling here.
9

11

Rule 15 allows a party to amend a pleading once as a
matter of right within twenty-one days after serving the pleading
or within twenty-one days of service of a responsive pleading or
certain motions.
either

obtain

FED. R. CIV. P. 15(a)(1).

the

opposing

party’s

Otherwise, a party must

written

consent

permission from the court to amend the pleading.

or

seek

FED. R. CIV. P.

15(a)(2). Rule 15 further provides that “[t]he court should freely
give leave [to amend] when justice so requires.”

FED. R. CIV. P.

15(a)(2).
The standards under these rules are broadly similar.
The district court maintains considerable discretion to determine
whether joinder or leave to amend should be granted.

See United

States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir.
2016); Romano, 2017 WL 193502, at *2.

“In deciding whether to

permit joinder, courts apply the ‘same standard of liberality
afforded to motions to amend pleadings under Rule 15.’”
v.

Starbucks

Corp.,

No.

08-CV-3734,

2009

WL

Lawrence

4794247,

at

*2

(S.D.N.Y. Dec. 10, 2009) quoting Soler v. G&U, Inc., 86 F.R.D.
524, 528 (S.D.N.Y. 1980).

Further, courts deny such motions based

on the same factors--undue delay, futility, bad faith or prejudice
to the non-moving party.

See Lawrence, 2009 WL 4794247, at *2.

Delay, on its own, is not sufficient to deny leave to amend;
however, “the longer the period of unexplained delay, the less

12

will be required . . . in terms of a showing of prejudice.”
Davidowitz, 2010 WL 1779279, at *2.
II.

Application
Procedurally, this case presents an interesting issue.

As discussed, Plaintiffs have agreed to dismiss all but one
defendant from the case and that defendant, Pinnacle, has not
appeared.

Nonetheless,

Plaintiffs

contend

that

joinder

is

permissible. (See Pls.’ Feb. 2017 Ltr.) Plaintiffs have not cited
any specific authority for their position, and the Court has been
unable to find any controlling authority on point.

However,

assuming that Plaintiff is permitted to join a defendant under
these circumstances, Plaintiffs have not established that joining
Jetpay is proper under Rule 20.10
Initially, Plaintiffs have not shown that they have
asserted a right to relief against Defendants and Jetpay “jointly,
severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or
occurrences.”

FED. R. CIV. P. 20(a)(2)(A).

The PTAC focuses almost

exclusively on Jetpay and alleges that Jetpay is at fault for the
unauthorized charges.

(See PTAC ¶¶ 14-31.)

The PTAC also does

not appear to assert any claim against Defendants and Jetpay

Plaintiffs failed to address either of the requirements of
Rule 20 in their brief.
10

13

jointly, severally, or in the alternative.

In fact, the causes of

action appear to be asserted only against Jetpay, and a heading in
the PTAC states: “Causes of Action-Jetpay.”
Additionally,

Plaintiffs

have

(PTAC at 8.)
not

shown

that

“any

question of law or fact common to all defendants will arise in the
action.”

FED. R. CIV. P. 20(a)(2)(B).

There cannot be any common

questions of law or fact when, as here, the amended pleading
appears to assert claims only against the proposed new party.
Further,

even

allegations

if

the

against

Court

overlooked

Defendants

and

the

absence

construed

the

of
PTAC

any
as

continuing to assert unfair business practice, fraud, negligence,
and breach of fiduciary duty claims against Defendants set forth
in the Consolidated Second Amended Complaint, it would not change
the result. Those claims involve questions of law and fact related
to

Defendants’

obligations

and

duties

under

the

Merchant

Agreements, including whether the agreements were breached.

See,

e.g., Eugenia VI Venture Holdings, Ltd. v. Glaser, 370 F. App’x
197, 199 (2d Cir. 2010) (“To prove breach of fiduciary duty under
New York law, a plaintiff must demonstrate: breach by a fiduciary
of a duty owed to plaintiff; defendant’s knowing participation in
the breach; and damages.”) (internal quotation marks and citation
omitted).

On the other hand, the civil RICO claim against Jetpay

involves questions of law and fact regarding whether Jetpay engaged
in a pattern of racketeering activity and participated in an
14

enterprise. See, e.g., Hinterberger v. Catholic Health Sys., Inc.,
536 F. App’x 14, 16 (2d Cir. 2013) (“In order to state a claim
under civil RICO, a plaintiff must allege the existence of seven
constituent elements: (1) that the defendant (2) through the
commission of two or more acts (3) constituting a pattern (4) of
racketeering activity (5) directly or indirectly invests in, or
maintains an interest in, or participates in (6) an enterprise (7)
the activities of which affect interstate or foreign commerce.”)
(internal quotation marks and citation omitted).

While Plaintiffs

contend that they are only seeking to add Jetpay and “not . . .
to add new allegations,” the addition of the civil RICO claim
substantially alters the nature of the case.

(Pls.’ Br. at 10.)

Accordingly, the Court finds that Plaintiffs have not established
the requirements of Rule 20.
Even if the requirements of Rule 20 were satisfied, the
Court has serious concerns about Plaintiffs’ delay in bringing
this motion and their motivations for pursuing joinder at this
stage.

Plaintiffs have known that Jetpay was responsible for

processing certain transactions on Defendants’ behalf since at
least January 2013.

(See Am. Compl, Docket Entry 26, ¶ 15 (“Upon

information and belief, however, JetPay Merchant Services, LLC
began to perform certain processing services for and on behalf of
the

Defendants

in

or

about

March

2012.”).)

Nevertheless,

Plaintiffs failed to seek leave to join Jetpay until June 2016-15

more than three years later.

Moreover, Plaintiffs’ explanation

for the three-year delay is unconvincing.

See Khan v. McElroy,

No. 13-CV-5043, 2014 WL 3945952, at *5 (S.D.N.Y. Aug. 7, 2014)
(“‘[I]t is incumbent upon the movant to offer a valid explanation
for the delay.’”) quoting Deere v. Goodyear Tire and Rubber Co.,
175 F.R.D. 157, 166 (N.D.N.Y. 1997).

Plaintiffs argue that the

delay is justified because “[i]t was only during discovery and
[after] further investigation . . . that Plaintiffs’ discovered
the extent of Jetpay’s involvement.” (Pls.’ Br. at 11.)

However,

Plaintiffs knew of Jetpay’s involvement before any discovery took
place.

(See Am. Compl, ¶ 15.)

Further, Plaintiffs had several

opportunities to pursue a claim against Jetpay, as they have
amended their complaint twice since January 2013. (See, First Am.
Compl., Docket Entry 70; Consol. Sec. Am. Compl.)

Instead, just

seventeen days before the end of discovery and three months before
Plaintiffs

agreed

to

dismiss

virtually

all

of

the

remaining

Defendants from the case, Plaintiffs filed their joinder motion.
Plaintiffs

concede

that

“old

counsel

chose

not

to

include Jetpay as a . . . [d]efendant,” and it was only after a
substitution of counsel that Plaintiffs decided to move to join
Jetpay.

(Pls.’ Br. at 8-9.)

However, Plaintiffs are bound by the

decisions of their former attorney and cannot re-litigate this
matter through a joinder motion.

See Link v. Wabash R.R. Co., 370

U.S. 626, 633-34, 82 S. Ct. 1386, 1390, 8 L. Ed. 2d 734 (1962)
16

(“Petitioner voluntarily chose this attorney as his representative
in this action, and he cannot now avoid the consequences of the
acts or omissions of this freely selected agent . . . . [E]ach
party is deemed bound by the acts of his lawyer-agent and is
considered to have notice of all facts, notice of which can be
charged

upon

the

attorney.”)

(internal

quotation

marks

and

citation omitted); see also Davidowitz, 2010 WL 1779279, at *4
(finding that prior counsel’s failure to join an individual as a
third-party defendant did not excuse delay).
While

the

Court

cannot

be

sure

of

Plaintiffs’

intentions, it appears that Plaintiffs realized that their claims
against Defendants were likely to fail and sought to transform
this action at the eleventh-hour. Therefore, the motion is DENIED.
CONCLUSION
For

the

foregoing

reasons,

Plaintiffs’

motion

for

joinder of Jetpay Merchant Services, LLC (Docket Entries 157, 158)
is DENIED.
Should Plaintiffs wish to proceed against Pinnacle, they
are directed to properly serve the Second Amended Complaint on
Pinnacle and file proof of service within thirty (30) days of the
date of this Memorandum and Order.11

Should Plaintiffs fail to do

The Court previously denied Plaintiffs’ motion for a default
judgment against Pinnacle because Pinnacle was not properly
served with the Second Amended Complaint. (March 2016 Order, at
4-6.)
11

17

so,

the

claims

against

Pinnacle

will

prejudice, and the case will be closed.

be

dismissed

without

See FED. R. CIV. P. 4(m).

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

Dated:

March
30 , 2017
Central Islip, New York

18