Rosario v. Fresh Smoothies LLC et al
AMENDED MEMORANDUM AND ORDER: Plaintiff has met her burden to show that she mislabeled the correct defendant in naming Robinson Capellan as "Robinson Capello" in the filings in this case. The motion to amend the judgment is therefor e GRANTED. The Clerk of Court is respectfully directed to amend the caption to substitute "Robinson Capellan" in place of Robinson Capello and to issue a revised judgment in place of Dkt. No. 37 containing the correct name for Defendant Robinson Capellan. ( As further set forth in this Order.) SO ORDERED. (Signed by Judge Lewis J. Liman on 8/1/2022) (vfr) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRESH SMOOTHIES LLC, FRESH FRUTII LLC,
ROBINSON CAPELLAN, and JOHN FRANCIS
LEWIS J. LIMAN, United States District Judge:
On December 9, 2021, the Court ordered the entry of default judgment against
Defendants Fresh Frutii LLC, Fresh Smoothies LLC (together with Fresh Frutii LLC, the
“Restaurants”), Robinson Capello, and John Francis Rivera. See Dkt. No. 36 at 2, 17–18. That
same day, the Clerk of Court entered judgment in favor of Plaintiff Yajaria Rosario reflecting the
Court’s holding and setting forth Plaintiff’s damages. Dkt. No. 37.
On July 2, 2022, Plaintiff moved for an order pursuant to Federal Rule of Civil Procedure
60(a) amending the judgment entered in this action to correct the spelling of the name of one of
the individual defendants. Dkt. No. 41. In support of the motion, Plaintiff’s counsel submitted a
declaration explaining that the complaint and all subsequent documents filed in this action
misspelled the name of defendant Robinson Capello; the correct spelling is Robinson Capellan.
Dkt. No. 42 ¶¶ 4–5. Plaintiff’s counsel avers that, notwithstanding this incorrect spelling,
“Capellan has received notice of this action and has had ample opportunity to respond.” Id. ¶ 6.
Plaintiff also filed an affidavit of service on the docket that reflects that “Robinson Capello” was
served by mail at 2447 Creston Avenue, Bronx, New York 10468 with the motion to amend the
judgment and supporting paperwork. Dkt. No. 40. No defendant—including Capellan—has
responded to the motion.
Rule 60(a) provides that “[t]he court may correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a judgment, order, or other part of the
record” and “may do so on motion or on its own, with or without notice.” Fed. R. Civ. P. 60(a).
In the Second Circuit “in appropriate circumstances, a district court may employ this Rule to
correct misnomers in a party’s name. Such a misnomer may be corrected when ‘plaintiffs did
not select the wrong defendant but committed the lesser sin of mislabeling the right defendant.’”
Robinson v. Sanctuary Music, 383 F. App’x 54, 57 (2d Cir. 2010) (summary order) (quoting
Datskow v. Teledyne, Inc., Cont’l Prods. Div., 899 F.2d 1298, 1301 (2d Cir. 1990) (holding that
district court did not abuse its discretion in amending summons, complaint, and default judgment
to correct misnaming of defendant as “Sanctuary Music” when correct name was “Sanctuary
Records Group”). In determining whether a party actually selected the wrong defendant or
mislabeled the right defendant such that a court can correct the misnomer, a court considers
“whether the plaintiff identifies the defendant in several ways, whether the complaint lists the
defendant’s correct address, and the degree of similarity between the name contained in the
complaint and the actual name.” Sermuks v. Orion Caterers, Inc., 2017 WL 5714087, at *3
(E.D.N.Y. Nov. 28, 2017) (citing Robinson, 383 F. App’x at 57).
Here, all three factors point in favor of a conclusion that Plaintiff mislabeled the correct
defendant. “Capello” was identified in Plaintiff’s complaint as “an officer, director, shareholder,
and/or person in control of the Restaurants who exercises significant control over the
Restaurants’ operations.” Dkt. No. 1 ¶ 13. Plaintiff’s counsel has attached to his declaration a
time sheet that lists the manager of Fresh Frutii LLC as “Robinson Capellan.” Dkt. No. 42-2.
The complaint also lists 2450 Creston Avenue, Bronx, New York 10468 as the addresses for one
of the Restaurants, Dkt. No. 1 at ¶ 9, and Plaintiff’s counsel has submitted a LexisNexis report
showing that Robinson Capellan is associated with that address, Dkt. No. 42-1 at ECF p. 4.
There is also an affidavit of service in the record that states a “Robinson Capello” was served at
2447 Creston Avenue, Bronx, New York 10468, Dkt. No. 35, which is another address the
LexisNexis report states is associated with Capellan, Dkt. No. 42-1 at ECF p. 4. Finally, there is
a high degree of similarity between the name “Robinson Capello” and “Robinson Capellan.”
Plaintiff has met her burden to show that she mislabeled the correct defendant in naming
Robinson Capellan as “Robinson Capello” in the filings in this case. The motion to amend the
judgment is therefore GRANTED. The Clerk of Court is respectfully directed to amend the
caption to substitute “Robinson Capellan” in place of “Robinson Capello” and to issue a revised
judgment in place of Dkt. No. 37 containing the correct name for Defendant Robinson Capellan.
Dated: August 1, 2022
New York, New York
LEWIS J. LIMAN
United States District Judge
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