Mermaid vs. GDM Ltd, Inc.

Filing 21

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Plaintiff's objections (Docket Entry 20) are OVERRULED and Judge Lindsay's R&R (Docket Entry 16) is ADOPTED in its entirety. Plaintiff's motion for def ault judgment against GDM (Docket Entry 16) is DENIED WITHOUT PREJUDICE and with leave to renew. Plaintiff is directed to serve a copy of this Memorandum and Order on all defendants and to file proof of service on ECF. So Ordered by Judge Joanna Seybert on 9/21/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MERMAID LANDINGS LLC,
Plaintiff,

MEMORANDUM & ORDER
15-CV-3100(JS)(ARL)

-againstGDM LTD., INC., DAVID BALLINGER,
and A&M MANUFACTURING, INC.,

Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Michael Evan Stern, Esq.
Kristin Eileen Poling, Esq.
Robin, Fiorella & Friedman LLP
630 Third Ave., 3rd Floor
New York, NY 10017
For Defendants
GDM Ltd., Inc.:

No appearance

David Ballinger:

No appearance

A&M Manufacturing:

A&M Manufacturing, Inc., pro se
26988 SE Highway 19
Old Town, FL 32680

SEYBERT, District Judge:
Currently pending before the Court is Magistrate Judge
Arlene R. Lindsay’s Report and Recommendation dated August 5, 2016
(the “R&R”), with respect to plaintiff Mermaid Landings LLC’s
(“Plaintiff”) motion for entry of a default judgment against
defendant GDM Ltd., Inc. (“GDM”).

(Docket Entries 14 and 16.)

Judge Lindsay recommends that Plaintiff’s motion be denied with
leave to renew.

(R&R, Docket Entry 16, at 1.)

Plaintiff has filed

objections, which are presently before the Court.

(Pl.’s Obj.,

Docket Entry 20.)

For the reasons set forth below, Plaintiff’s

objections are OVERRULED, the R&R is ADOPTED in its entirety, and
Plaintiff’s motion is DENIED WITHOUT PREJUDICE and with leave to
renew.
BACKGROUND
On May 28, 2015, Plaintiff commenced this action against
defendants

GDM,

David

Ballinger

(“Ballinger”),

and

A&M

Manufacturing, Inc. (“A&M”), asserting a federal claim pursuant to
the Magnuson-Moss Warranty Act and state law claims for breach of
the

New

York

Uniform

Commercial

Code,

breach

of

contract,

violations of the New York Consumer Protection Act, breach of the
Florida

Uniform

Commercial

Code,

violations

of

Consumer Protection Statute, and breach of warranty.

the

Florida

(See Compl.

¶¶ 30-66.)
The Complaint alleges, in relevant part, that Plaintiff
purchased a defective houseboat from GDM, which designs and sells
MetroShip Brand custom houseboats.

(Compl. ¶¶ 12, 14, 25.)

Ballinger is the owner of GDM, (Compl. ¶ 5), and GDM engaged A&M
to construct Plaintiff’s houseboat (Compl. ¶ 18).

After Plaintiff

discovered numerous defects in her houseboat, Ballinger indicated
that he would “remedy the situation.”

(Compl. ¶ 26.)

A&M

dispatched employees to Montauk, New York, to repair Plaintiff’s
houseboat; however, A&M employees failed to complete the repairs.
(Compl. ¶¶ 27-28.)
2

On October 26, 2015, the Clerk of the Court entered a
default against GDM pursuant to Federal Rule of Civil Procedure
55(a).

(Docket Entry 13.)

On November 4, 2015, Plaintiff moved

for the entry of default judgment against GDM. (Pl.’s Mot., Docket
Entry 14.)

On January 16, 2016, the Court referred Plaintiff’s

motion to Judge Lindsay for a report and recommendation on whether
the motion should be granted.

(Docket Entry 15.)

A. The R&R
The R&R recommends that Plaintiff’s motion be denied
with leave to renew.

At the outset, Judge Lindsay referenced the

affidavits of service filed with respect to Plaintiff’s attempted
service of the Summons and Complaint on GDM and Ballinger.
at 1-2.)

(R&R

Judge Lindsay noted that while Plaintiff attempted to

serve GDM pursuant to New York Business Corporation Law Section
307, the affidavit of service “causes some concern.”

(R&R at 1.)1

Additionally, Judge Lindsay noted that the affidavit of service
filed

regarding

Ballinger

indicates

that

Plaintiff’s

process

The R&R states that while the affidavit of service indicates
that the Summons and Complaint were delivered to the New York
Secretary of State, “the Florida process server tasked with the
job of mailing a copy to GDM had difficulty because the address
for such service was a United States Post Office.” (R&R at 12). However, as set forth more fully infra, the Court’s review
of Plaintiff’s affidavits of service indicates that the Summons
and Complaint were mailed to GDM at a Zellwood, Florida address,
but Plaintiff’s process server was unable to personally serve
GDM at that address because it is a post office that does not
accept service. (Pl.’s Affs., Docket Entry 6.)
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3

server was unable to locate Ballinger.

(R&R at 2.)

As a result,

Judge Lindsay concluded that A&M is the only defendant “clearly on
notice of this action.”

(R&R at 2.)

Judge Lindsay also noted

that the Clerk of Court declined to enter default against Ballinger
in light of the improper service.

(R&R at 2.)

Judge Lindsay stated that Plaintiff failed to properly
support

its

motion,

noting

that

Plaintiff

did

not

submit

a

memorandum of law or proffer factual support and its “three page
affidavit does not even cite to the complaint.”

(R&R at 2.)

Judge

Lindsay concluded that “without more support, the court must
recommend that the motion be denied at this time.”

(R&R at 2.)

DISCUSSION
“When evaluating the report and recommendation of a
magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).

A party may serve and file

specific, written objections to a magistrate judge’s report and
recommendation within fourteen days of being served with the
recommended disposition.
receiving

any

timely

See FED. R. CIV. P. 72(b)(2).

objections

to

the

magistrate

Upon
judge’s

recommendation, the district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.”

28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV.
4

P. 72(b)(3).
must

point

A party that objects to a report and recommendation
out

the

specific

portions

of

the

recommendation to which they are objecting to.

report

and

See Barratt v.

Joie, No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)
(citations omitted).

The Court must conduct a de novo review of

any contested sections of the magistrate judge’s report.

See

Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
Plaintiff objects to the R&R and alleges that Judge
Lindsay erred in recommending the denial of its motion because:
(1) GDM was properly served, (2) Plaintiff was not required to
file a memorandum of law, and (3) Plaintiff’s failure to serve
Ballinger is irrelevant as Plaintiff only moved for a default
judgment against GDM.

(Pl.’s Obj. 2-4.)

First, Judge Lindsay aptly noted that the affidavits
filed regarding Plaintiff’s attempted service of the Summons and
Complaint on GDM raise concerns.
that

GDM

was

properly

served

(R&R at 1.)
pursuant

to

Plaintiff argues

New

York

Business

Corporation Law (“BCL”) Section 307 because Plaintiff served the
New York Secretary of State and mailed a copy of the Summons and
Complaint to GDM’s last known business address.
3.)2

(Pl.’s Obj. at 2-

While Plaintiff’s affidavits of service state that the

BCL Section 307(b)(2) provides that service on an unauthorized
foreign corporation is sufficient where the process is
personally delivered to the Secretary of State and a copy is
sent by registered mail, return receipt requested, to “the post
2

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Secretary of State was personally served and the Summons and
Complaint were sent to GDM by registered mail, return receipt
requested, at “3125 N. Washington [S]treet, #133 [Z]ellwood, [FL].
32798” (the “Zellwood Address”), Plaintiff’s affidavit of nonservice indicates that a process server attempted to serve GDM at
the Zellwood Address but was advised that the Zellwood Address is
a post office that does not accept service.
Entry 6-1.)

(Pl.’s Affs., Docket

Plaintiff alleges that the Summons and Complaint was

mailed to GDM’s “last known business address,” but fails to proffer
any

documentation

or

additional

support

for

the

questionable

notion that the Zellwood Address--which is apparently a post
office--is GDM’s last known business address.

(Pl.’s Obj. at 2-

3.)
Second, Plaintiff’s argument that it was not required to
submit a memorandum of law in support of its motion is without
merit. Local Civil Rule 7.1(a)(2) provides that with the exception
of letter motions, all motions filed in this Court shall include,
inter alia, “[a] memorandum of law, setting forth the cases and
other authorities relied upon in support of the motion, and

office address specified for the purpose of mailing process, on
file in the department of state, or with any official or body
performing the equivalent function, in the jurisdiction of its
incorporation, or if no such address is there specified, to its
registered or other office there specified, or if no such office
is there specified, to the last address of such foreign
corporation known to the plaintiff.” N.Y. BCL § 307(b)(2).
6

divided, under appropriate headings, into as many parts as there
are issues to be determined[.]”

Where the plaintiff fails to file

a memorandum of law pursuant to Local Civil Rule 7.1(a)(2), “the
Court may deny the motion, though it is not required to do so.”
Cardoza v. Mango King Farmers Market Corp., No. 14-CV-3314, 2015
WL

5561033,

at

*2

n.4

(E.D.N.Y.

Sept.

1,

2015),

report

and

recommendation adopted, 2015 WL 5561180 (E.D.N.Y. Sept. 21, 2015).
Here, as noted by Judge Lindsay, Plaintiff not only failed to file
a memorandum of law, but its supporting attorney affirmation also
failed to include any legal authority or even citations to the
Complaint.

(See generally Pl.’s Affm., Docket Entry 14-1; see

also R&R at 2.)

Moreover, the Court concurs with Judge Lindsay

that Plaintiff woefully failed to factually support its request
for damages or attorneys’ fees.

(R&R at 2.)

To the extent Plaintiff argues that it is entitled to
default judgment for a sum certain pursuant to Federal Rule of
Civil Procedure Rule 55(b)(1), that argument is also misplaced.
(Pl.’s

Obj.

at

3.)

Rule

55(b)(1)

provides

that

“[i]f

the

plaintiff’s claim is for a sum certain or a sum that can be made
certain by computation, the clerk--on plaintiff’s request, with an
affidavit showing the amount due--must enter judgment for that
amount and costs against a defendant who has been defaulted for
not appearing[.]”

FED. R. CIV. P. 55(b)(1).

However, the Complaint

does not set forth a claim for a sum certain. Rather, the Complaint
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seeks the following relief: “judgment in [Plaintiff’s] favor for
all Courts, money damages, attorney’s fees, interests and costs
and all available additional relief as this Court sees fit.”
(Compl. at 11.)

Parenthetically, while Plaintiff’s objections

allege that its “damages have specifically been shown to be
$121,380,” (Pl.’s Obj. at 3), Plaintiff has provided no evidentiary
support for its purported damages calculation, aside from the
Complaint’s

allegation

that

the

price

of

the

houseboat

was

$121,380, (see Compl. ¶ 16).
Third, the Court construes Judge Lindsay’s discussion of
Plaintiff’s failure to serve Ballinger as part of the factual
background of Plaintiff’s motion, rather than a basis for her
recommendation that Plaintiff’s motion be denied.
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

objections

(Docket Entry 20) are OVERRULED and Judge Lindsay’s R&R (Docket
Entry 16) is ADOPTED in its entirety.

Plaintiff’s motion for

default judgment against GDM (Docket Entry 16) is DENIED WITHOUT
PREJUDICE and with leave to renew.

Plaintiff is directed to serve

a copy of this Memorandum and Order on all defendants and to file
proof of service on ECF.
SO ORDERED.
Dated:

September 21 , 2016
Central Islip, NY

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