Sadis & Goldberg, LLP v. Banerjee

Filing 76

MEMORANDUM ORDER: denying 48 Motion to Set Aside Judgment. For the foregoing reasons, Defendant's motion to set aside default judgment and motion to vacate default is denied. This Memorandum Opinion and Order resolves Docket Entry No. 48. SO ORDERED.(Signed by Judge Laura Taylor Swain on 3/30/2017) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
SADIS & GOLDBERG, LLP,
Plaintiff,
-v-

No. 14-CV-913-LTS

SUMANTA BANERJEE,
Defendant.
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MEMORANDUM ORDER
Plaintiff Sadis & Goldberg, LLP (“Sadis & Goldberg” or “Plaintiff”) commenced
this breach of contract action against Defendant Sumanta Banerjee (“Banerjee” or “Defendant”)
in February 2014, following the dismissal without prejudice of an action seeking substantially
the same relief on the same facts (Civil Action No. 13-CV-7355-LTS (the “2013 Action”)).
Plaintiff sought to recover legal fees billed in connection with the defense of another action in
which Plaintiff represented Banerjee. (See Complaint, Docket Entry No. 2.) The Court entered
judgment in Plaintiff’s favor by default in this action on April 28, 2015, and Defendant now
moves to vacate that judgment.
The Court has jurisdiction of this case under 28 U.S.C. § 1332.
For the following reasons, Defendant’s motion is denied in its entirety.

BACKGROUND
As extensively set forth in filings in connection with earlier motion practice in the
instant action (see, e.g., Docket Entry No. 16), Plaintiff was repeatedly unsuccessful in
attempting to serve Defendant in both this action and the 2013 Action. Plaintiff was first

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unsuccessful in its attempts to serve Plaintiff with the summons and complaint in the 2013
Action at a residential address in the United States that was associated with members of his
immediate family—his wife was served but then sent a letter to a Sadis & Goldberg attorney,
with a copy to the Clerk of this Court, denying that the Defendant lived at the address, asserting
that the Defendant had returned to India to live and providing a street address in India. Plaintiff
then unsuccessfully attempted Hague Convention service of the papers in the 2013 Action at the
street address in India that had been provided by Defendant’s wife; service was effectuated on
Defendant’s mother at “Flat 142B” of that address. Plaintiff’s mother’s Indian attorney wrote to
the Indian Central Authority, denying that the Defendant lived in the unit at which she had
received the papers, and Defendant’s mother sent an affidavit to Plaintiff to the same effect. (See
The 2013 Action, 13-CV-7355-LTS, Docket Entry No. 6; Civil Action No. 14-CV-913, Docket
Entry No. 13-13.) Finally, Plaintiff unsuccessfully initiated Hague Convention service on
Defendant with the summons and complaint in the instant action at the Indian street address, but
the Indian Central Authority never responded to Plaintiff’s request for service.
Following these numerous failed attempts, Plaintiff applied to this court for
authorization of an alternative form of service pursuant to Rule 4(f)(3) of the Federal Rules of
Civil Procedure. On July 3, 2014, having considered and found sufficient Plaintiff’s earlier
efforts to serve Defendant, the Court authorized service by email through an email address that
Defendant had used in connection with litigation in the District of Massachusetts. (See Docket
Entry No. 16.)
Following Defendant’s failure to respond to the summons and complaint, Plaintiff
applied for permission to engage in default judgment motion practice, and the Court authorized
the motion practice. (See Docket Entry No. 21.) Plaintiff served its motion papers on Defendant

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by both email and “express mail” to what Plaintiff believed was the Defendant’s “last known
address in India,” and, i.e., the one that had been provided by Defendant’s wife to Plaintiff.
(Docket Entry No. 23.) On January 12, 2015, Plaintiff filed a properly-supported motion for
default judgment against Defendant and served Defendant by email and U.S. Postal Service
international mail to the street address in India. (See Docket Entry Nos. 33-36.) Defendant did
not respond to Plaintiff’s default judgment motion.
On February 6, 2015, the Court granted the motion, and directed Plaintiff to
provide the Court with “affidavits attesting to the accuracy, reasonableness, necessity and
pertinence of all work done pursuant to the terms of the parties’ retention agreement, and all
expenses incurred, for which Plaintiff seeks to recover compensation [and] evidence
documenting, and affidavits attesting to the reasonableness and propriety of, any other costs,
expenses or interest that it seeks to recover” by February 20, 2015. (Docket Entry No. 39.)
Plaintiffs complied with the Court’s deadline and filed evidentiary material on February 18,
2015, and served its filing on Plaintiff by email and international mail. (See Docket Entry Nos.
40, 41.) Defendant was directed to file any opposition by March 13, 2015. (See Docket Entry
No. 39.) He did not respond. On April 9, 2015, the Court awarded “Plaintiff $379,652.37 in
fees associated with its prior representation of Defendant, as well as prejudgment interest,
calculated at a rate of 1% per month for each invoice not paid within 30 days of receipt,” and
denied “Plaintiff’s request for $106,613.50 in fees associated with motion practice in this case”
in a memorandum order. (Docket Entry No. 43.) Judgment in favor of Plaintiff was entered on
April 28, 2015, and the case was terminated. (Docket Entry No. 46.)
One year later, on April 27, 2016, Defendant initiated the instant motion practice
pursuant to Federal Rule of Civil Procedure 60(b), seeking an order declaring the default

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judgment invalid as based on an invalid method of service. (See Docket Entry No. 48.)
Defendant admits that the email address that had been used for service belongs to him and is one
that he has used, but asserts that he had switched, because of excessive “spam,” to using his
wife’s email address in the Massachusetts litigation prior to the service of the summons and
complaint in this action. (See id.) He alleges that he only belatedly learned of the instant action
and the default judgment entered by this Court because a “friend” brought them to his attention
and that he subsequently went on to the Court’s online e-filing system and read the papers. (See
Docket Entry No. 65.)
Defendant asserts that he wishes to defend against Plaintiff’s claim, principally on
the ground that the parties had entered into an agreement under which the subject debt was to
have been satisfied by Plaintiff’s foreclosure on Defendant’s interest in an entity rather than by
collection of a money judgment. (See Docket Entry Nos. 48, 65, 71.) Defendant proffers a copy
of the agreement upon which he relies for his contention that Plaintiff’s pursuit of a money
judgment is precluded. (See Docket Entry No. 48, at 46-47; see also Complaint, Docket Entry
No. 2, Ex. C.) Defendant also proffers that the street address in India at which Plaintiff
attempted to serve him is valid, but that he has not received documents Plaintiff claims to have
sent to him there by Federal Express. (See Docket Entry No. 48, at 10-12.)
Plaintiff opposes the motion, contending that email service pursuant to the Court’s
July 3, 2014, order was proper, that Defendant’s putative defense is meritless and that his denial
of receipt of process is mendacious. Defendant has made additional submissions.
The Court has reviewed thoroughly all of the parties’ submissions in connection
with this Rule 60(b) motion practice, as well as the submissions upon which the Court granted
the order authorizing alternative service and Plaintiff’s motion for default judgment.

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For the following reasons, Plaintiff’s motion is denied in its entirety.

DISCUSSION
Defendant argues that the judgment must be vacated as void because email
service on Indian residents is precluded by India’s objection to the Hague Convention Article 10
service provisions, that the email address used was not an appropriate one, and that he has a valid
defense to Plaintiff’s claim.
The default judgment entered in favor of Plaintiff is not void because email
service was not precluded by India’s objection to Hague Convention Article 10 service. As the
Court explained in detail in its July 3, 2014, order allowing Plaintiff to serve Defendant by email
through an email address that Banerjee had used in connection with litigation in the District of
Massachusetts, the weight of authority on this point is that methods are not precluded unless
specifically enumerated and a signatory nation has specifically objected to them. (See Docket
Entry No. 16; see also F.T.C. v. Pecon Software Ltd., 2013 WL 4016272, at *4-5 (S.D.N.Y.
Aug. 7, 2013) (“where a signatory nation has objected to only those means of service listed in
Article 10, a court acting under Rule 4(f)(3) remains free to order alternative means of service
that are not specifically referenced in Article 10”) (internal brackets omitted).) Article 10
provides for service by postal channels, through judicial officers, and through other competent
persons in the State of destination. See Hague Convention on Service Abroad of Judicial and
Extrajudicial Documents art. 10, signed Nov. 15, 1965, in force Feb. 10, 1969, 20 U.S.T. 361,
658 U.N.T.S. 163. Article 10 does not address service by email. Id. Thus, although conceptual
analogies can be drawn between email and postal service, India’s lack of specific objection to
use of this technology, which is not a new technology, as a means of service leaves its use
permissible.

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Defendant further argues that the default judgment was improper because Plaintiff
did not comply with the time periods and procedures set forth in Article 15 of the Hague
Convention. However, because the Court authorized an alternative means of service in this case,
compliance with the Article 15 procedures was not a necessary predicate to Plaintiff’s
application to serve Defendant by email or its motion for judgment by default.
The Court has discretion to authorize alternative forms of service even where the
country at issue is a Hague Convention signatory. See F.T.C. v. PCCare247Inc., 2013 WL
841037, at *3-4 (S.D.N.Y. Mar. 7, 2013). “The decision of whether to order service of process
under Rule 4(f)(3) is committed to the sound discretion of the district court.” United States v.
Lebanese Canadian Bank SAL, 285 F.R.D. 262, 266 (S.D.N.Y. 2012) (internal quotation marks
and citations omitted). When granting Plaintiff’s request to serve Defendant by email, the Court
found Plaintiff’s proffers sufficient after Plaintiff had made numerous, documented attempts to
serve Defendant in both the instant action and the original action, and the Court properly
exercised its discretion.
Nor was there a denial of Defendant’s due process rights when the Court granted
Plaintiff’s requests to effectuate service by email. “Service by email alone comports with due
process where a plaintiff demonstrates that the email is likely to reach the defendant.” Pecon
Software Ltd., 2013 WL 4016272, at *5 (citations omitted). The Defendant does not deny that
the email address that was authorized for service by the Court in the July 3, 2014, order, belongs
to him and is one that he had used. (See Docket Entry Nos. 48, 65.)
Even if the Court accepts Defendant’s assertion that his default was not willful,
vacatur of the default judgment is not a foregone conclusion because the Court’s clear preference
for adjudication on the merits in the context of default judgments presumes a meritorious

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defense. See e.g., Indymac Bank, F.S.B. v. Nat’l Settlement Agency, Inc., 2007 U.S. Dist.
LEXIS 93420, at *2 (S.D.N.Y. Dec. 19, 2007). Defendant, however, has not proffered such a
defense. His claims of fraud and the improper pursuit of a money judgment turn on an
interpretation of a written agreement that is inconsistent with the plain and unambiguous terms of
that agreement. (See Docket Entry No. 48, at 46-47; see also Complaint, Docket Entry No. 2,
Ex. C.) In that agreement, as indicated by his counter-signature, Defendant acknowledged a
preexisting money debt to Plaintiff and agreed to pay it. The agreement reflects Defendant’s
outstanding debt to Plaintiff as of the agreement’s date; the amount is consistent with evidentiary
material proffered by Plaintiff in support of its default judgment application. (See id.; Docket
Entry No. 40, Ex. C.) Although the agreement contemplates the pledge of Defendant’s interest
in an entity as collateral for his outstanding debt and potential foreclosure on that interest should
Defendant “fail to zero out [his balance]” on or before a specified date, the document does not
limit Plaintiff to that remedy, nor does it provide for any novation or release of the underlying
liability. (See Docket Entry No. 48, at 46-47; see also Complaint, Docket Entry No. 2, Ex. C.)
Because Defendant was served properly, his due process rights were not violated,
and he has failed to proffer a meritorious defense, Defendant’s motion for relief from the default
judgment is denied and the judgment stands.

CONCLUSION
For the foregoing reasons, Defendant’s motion to set aside default judgment and

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motion to vacate default is denied.
This Memorandum Opinion and Order resolves Docket Entry No. 48.

SO ORDERED.

Dated: New York, New York
March 30, 2017
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

Copy Mailed To:
Sumanta Banerjee
58/1 Ballygunje Circular Rd.
Kolkata-19
West Bengal
India

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