Verragio, LTD. v. US Jewelry Factory

Filing 28

ORDER: On March 15, 2021, this Court entered a default judgment against Defendant, US Jewelry Factory Inc. (Dkt. 18.) On July 15, 2021, Defendant filed a motion to vacate the default judgment and reopen the case, arguing that it did not receive a copy of the pleadings before the Clerk of Court entered a certificate of default on May 22, 2020 (dkt. 12) and so never had an opportunity to respond to the complaint. (Dkt. 24). (As further set forth in this Order.) While the Court has been incl ined to be somewhat lenient with defaults that occurred at the height of the pandemic as this one did all this needs to be cleared up. Plaintiff has until August 27, 2021 to file its reply. ( Responses due by 8/27/2021) (Signed by Judge Colleen McMahon on 7/23/2021) (cf)

Case 1:20-cv-02713-CM Document 28 Filed 07/23/21 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VERRAGIO, LTD,
Plaintiff,
-against-

No. 20 Civ. 2713 (CM)

US JEWELRY FACTORY INC.
Defendant.
ORDER
McMahon, J.:
On March 15, 2021, this Court entered a default judgment against Defendant, US Jewelry
Factory Inc. (Dkt. 18.) On July 15, 2021, Defendant filed a motion to vacate the default judgment
and reopen the case, arguing that it did not receive a copy of the pleadings before the Clerk of
Court entered a certificate of default on May 22, 2020 (dkt. 12) – and so never had an opportunity
to respond to the complaint. (Dkt. 24).
The part about never having an opportunity to respond to the complaint may not actually
be true. This court as a matter of practice does not enter default judgments automatically when a
certificate of default issues. Instead – to avoid precisely the situation facing me now – my rules
require a plaintiff seeking a default judgment to serve on the defendant a copy of a motion for a
default judgment, together with a cover notice that describes the consequences of failing to respond
to the motion. The docket sheet in this case indicates that the Plaintiff did indeed make a motion
for a default judgment, and that it served the same on the defendant by mailing a copy to 71 West
47th Street, New York, NY – which, I assume, is the defendant’s place of business. If that is true,
the fact that the defendant did not receive a copy of the pleadings before the court entered the
default judgment would be of little moment.
Nonetheless, defendant represented in its moving papers that the first it knew of this lawsuit
was when its bank account was attached on June 22, 2021. So before I rule on the motion, I need
to know what the defendant knew and when. Plaintiff needs to respond to the motion to vacate; I
give it until August 13, 2021 to do so. In its response, plaintiff should attach the proof of service
of the original complaint on the secretary of state. I note that there seems to be a discrepancy
between (1) the address that is on file for the defendant corporation with the Secretary of State (21
West 46th Street) and (2) the address for Defendant that Plaintiff included on the summons, and
to which Plaintiff mailed a copy of the notice of motion for default judgment and a copy of the
default judgment (71 West 47th Street). (See dkt. 4, 17, 20). We need to clarify whether the
original summons and complaint was sent to the Defendant at the wrong address – and if so,

Case 1:20-cv-02713-CM Document 28 Filed 07/23/21 Page 2 of 2

whether that it because someone in Albany made a mistake or because the Defendant moved its
place of business but failed to notify the Secretary of State. Alternatively, it is possible that the
Secretary of State has the correct address and Plaintiff is using the wrong one. Or it is possible that
the Defendant uses two different addresses in the Diamond District – one for a corporate office
and another for its actual place of business operation.
While the Court has been inclined to be somewhat lenient with defaults that occurred at
the height of the pandemic – as this one did – all this needs to be cleared up.
Plaintiff has until August 27, 2021 to file its reply.
Dated: July 23, 2021

District Judge
BY ECF TO ALL COUNSEL