The Standard Fire Insurance Company v. Senix Marine, LLC

Filing 33

ORDER: For the reasons stated (PLEASE SEE ORDER FOR FURTHER DETAILS), Javino's motion and supporting documentation are stricken in their entirety for being procedurally defective. So Ordered by Judge Joan M. Azrack on 4/30/2019. (Ortiz, Grisel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THE STANDARD FIRE INSURANCE COMPANY,
Plaintiff,

For Online Publication Only
ORDER
16-CV-6585 (JMA) (SIL)

-againstSENIX MARINE, LLC,
Defendant.
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AZRACK, United States District Judge:

FILED 
CLERK 

4/30/2019 4:57 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

In September 2016, plaintiff Standard Fire Insurance Company commenced this property
subrogation action against Senix Marine, LLC after its boat sank at the Senix Marine Marina in
Center Moriches, New York. (ECF No. 1.) In January 2018, the parties reached a settlement and
the case was closed. (ECF No. 27.) Subsequently, Dale R. Javino (“Javino”) submitted multiple
documents to the Court, identifying himself as pro se on behalf of defendant Senix Marine, LLC.
(See ECF Nos. 28, 29, 30.) The pro se department returned Javino’s filings without docketing or
consideration, noting that Senix Marine, LLC is represented by an attorney—namely, Bradley J.
Corsair of the Law Offices of Leon Kowalski—and that Javino “may not file papers or
communicate directly with the court” and should “refer this matter to the attorney.” (ECF Nos.
28, 29.) The pro se department also informed Javino that a corporation cannot appear in this Court
without an attorney. (ECF No. 30.)
On December 21, 2018, attorney William Grausso of Grausso & Foy, LLP filed Javino’s
“emergency order to show cause,” an affidavit, and exhibits on behalf of Senix Marine, LLC.
(ECF No. 31.) Mr. Corsair, who defended Senix Marine, LLC in this action from its inception,
responded to Javino’s filing and noted the procedural deficiencies contained therein. (See ECF
No. 32.)

For the following reasons, the Court denies Javino’s motion in its entirety as it is
procedurally defective. And, even if Javino’s filing had been procedurally proper, the motion is
meritless.
I. DISCUSSION
Javino’s filing was docketed as a “motion to vacate settlement,” but the contents consist of
an “emergency order to show cause” and an “affidavit in support [of an] order to show cause, [to]
reopen [the] case, [and] dismiss [for] lack of jurisdiction.” (ECF No. 31.) It purportedly seeks to
reopen this case, vacate the settlement, and dismiss the case for lack of jurisdiction due to improper
service. The filing also contains an affidavit that is not notarized, where Javino claims he is the
“sole owner” of Senix Marine, LLC and that “Ranee Denton and her attorneys have stolen the
identity of the defendant [Senix Marine LLC] and answered the complaint without authority or
standing whatsoever and without my knowledge or consent.” (ECF No. 31-1.) The Court treats
this filing as a motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(b)(6).
1. Javino’s Motion is Procedurally Defective
Javino’s motion on behalf of Senix Marine, LLC is procedurally defective because it is not
signed by attorney. Federal Rule of Civil Procedure 11(a) requires motions and other filings to be
signed by an attorney unless it is permissible for a - -se party to sign the legal documents himself:
pro Every pleading, written motion, and other paper must be signed by at least one
attorney of record in the attorney’s name—or by a party personally if the party is
unrepresented. The paper must state the signer’s address, e-mail address, and
telephone number. Unless a rule or statute specifically states otherwise, a pleading
need not be verified or accompanied by an affidavit. The court must strike an
unsigned paper unless the omission is promptly corrected after being called to the
attorney’s or party’s attention.

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Fed. R. Civ. P. 11(a). 1 This signature requirement is a “think twice” provision meant to deter
irresponsible litigation. See Scarborough v. Principi, 541 U.S. 401, 417 (2004) (internal citation
omitted); - - --- - - - - - - - -Group,-Inc.-v. - - - - - - - 11-CV-2619, 2012 WL 1004859, at *4
see also V.P. Music - - - - - - - McGregor,
(E.D.N.Y. Mar. 23, 2012). Additionally, it is well-settled that only an attorney may represent a
business entity in court. See Rowland v. California Men’s Colony, 506 U.S. 194, 202 n.5 (1993);
see also Jones v. Niagara Frontier Transp. Auth.,
-- --- ------------------------- 722 F.2d 20, 22–23 (2d Cir. 1983). Thus, because
an LLC cannot be represented by a non-attorney, any filing prepared on behalf of Senix Marine,
LLC must have been signed by an attorney.
It is clear that an attorney did not sign or prepare the instant motion. Although these
documents were filed on the docket by Mr. Grausso, he did not sign any of the documents, file a
notice of appearance on the record, and has not otherwise been involved in this action. It is also
apparent that Mr. Grausso did not prepare these documents because they are identical to the
documents Javino attempted to file in May 2018. (See ECF No. 30.) Further, Javino’s affidavit
is not notarized nor amounts to an acceptable unsworn declaration permitted by 28 U.S.C. § 1746
because it fails to certify that it is made under penalty of perjury. See 28 U.S.C. § 1746. For these
reasons, Javino’s motion is denied.
2. Javino’s Motion Lacks Merit
Even if Javino’s motion were procedurally proper, it lacks merit. The Court construes the
instant motion as a motion for reconsideration under Federal Rule of Civil Procedure 60(b)(6),
which permits the district court to relieve a party from an order or judgement for “any other reason
that justifies relief.” Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) “is properly invoked only when there
are extraordinary circumstances justifying relief, when the judgment may work an extreme and

The Eastern District of New York’s Local Rules supplement the requirements of Federal Rule of Civil Procedure 11
and presuppose that every pleading, motion, and other paper submitted to the Court will be signed by an attorney
unless the party can properly proceed pro se. See E.D.N.Y. Local Civ. R. 11.1(a).

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undue hardship, and when the asserted grounds for relief are not recognized in clauses (1)-(5) of
the Rule.” Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) (internal citations omitted). In order
to qualify for relief under Rule 60(b)(6), a party must also set forth “highly convincing material”
in support of the motion. United States v. Cirami, 563 F.3d 26, 33 (2d Cir. 1977).
The instant motion falls well short of this standard. The attached exhibits consist of, inter
alia, a reply brief and an order from a state court proceeding, receipts for the filing of Senix
Acquisitions, LLC’s and Senix Marine, LLC’s articles of organization and certificates of
publication, and advertising invoices. (See ECF No. 31-2.) These exhibits are not “highly
convincing material” demonstrating that Javino is the sole owner of Senix Marine, LLC. There is
also no indication that “extraordinary circumstances” exist here that warrant vacature of the order
dismissing the case in light of the parties’ settlement. Thus, Javino has not met the burden required
for relief under Rule 60(b)(6).
II. CONCLUSION
For the reasons stated above, Javino’s motion and supporting documentation are stricken
in their entirety for being procedurally defective.
SO ORDERED.
Dated: April 30, 2019
Central Islip, New York

/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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