Opinion
00-CV-652
January 23, 2001
MITCHELL J. CONKLIN Plaintiff Pro Se Watertown, New York
McNAMEE, LOCHNER, TITUS KENNETH L. GELLHAUS, ESQ. WILLIAMS, P.C. Risk Management Alternatives and Credit Converters Albany, New York SAPERSON DAY, P.C. SUSAN R. KATZOFF, ESQ. FMA Enterprises, Inc. Syracuse, New York, Attorneys for Defendants
MEMORANDUM — DECISION AND ORDER
Plaintiff, appearing Pro Se brings this diversity action, inter alia, the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. and 18 U.S.C. § 1964 (RICO). The complaint alleges that the defendants used unfair and improper means to collect a debt by attempting to coerce plaintiff into entering a payment plan regarding a debt owed to defendant Sears Roebuck Co. ("Sears"), which was previously discharged in bankruptcy.
On September 30, 1993, plaintiff and his wife filed a joint Chapter 7 bankruptcy petition listing Sears as one of their creditors in Schedule (F) Creditors Holding Unsecured Priority Claims. At a "Meeting of Creditors" held on November 20, 1992, Sears was neither represented at the meeting nor filed any complaint objecting to the discharge of the bankrupts. The bankruptcy court issued a "Discharge of Debtors" on February 2, 1993, granting a discharge from debts that had arisen prior to the filing of the bankruptcy petition.
The Bankruptcy Code provides that a discharged debtor may reaffirm a pre-bankruptcy debt with a creditor if the reaffirmation agreement is filed with and approved by the bankruptcy court. 11 U.S.C. § 524 (c) and (d). Plaintiff asserts that starting on or about December 16, 1999, and continuing through April 21, 2000, defendants Sears and its collection agent, defendant FMA Enterprises, Inc. ("FMA") a corporation with its principal office in the State of Texas, severely bullied, deceived and threatened he and his wife by mail and telephone in attempts to have them sign a reaffirmation agreement to repay their discharged Sears debts. On April 26, 2000, plaintiff instituted this lawsuit claiming defendants' action caused him serious emotional harm and seeking compensatory, punitive and treble damages. On July 25, 2000, plaintiff entered into a Release and Settlement of Claims with defendant Sears. On October 11, 2000, plaintiff's application for a Clerk's Entry of Default was granted and entered as to defendant FMA.
Currently before the court are motions by defendant FMA pursuant to Federal Rule of Civil Procedure 55(c) and 60(b)(4), vacating entry of default and/or the entry of a default judgment entered against FMA by plaintiff, and for dismissal of the complaint as against FMA pursuant to Rule of Civil Procedure 12(b)(5) due to insufficiency of service of process. Plaintiff has moved for default judgment against FMA pursuant to Federal Rule of Civil Procedure 55(b)
DISCUSSION
FMA has moved to vacate the entry of default and to void the default judgment entered by plaintiff, however, only the entry of default has occurred thus far in this proceeding. The court, therefore, will consider that portion of FMA's motion concerned with voiding a default judgment as FMA's opposition to plaintiff's current motion for a default judgment
Rule 55(a) of the Federal Rules of Civil Procedures provides that, "[w]hen a party against who a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Rule 55(c) states that "[f]or good cause shown the court may set aside an entry of default."
FMA contends that the method of service — plaintiff sent a copy of the summons and complaint to FMA via certified mail — was insufficient and the entry of default should be vacated under Rule 55 (c), and the action should be dismissed as to it under Rule 12(b)(5).
Plaintiff argues that he effected proper service on FMA by having a copy of the summons and complaint sent by certified mail to FMA's business address on April 27, 2000. Federal Rule of Civil Procedure 4(h) authorizes a corporation to be "served . . . [pursuant to state law, or by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." Rule 4 (d)(1)(2)(A-F) provides that service can be waived by a defendant if he completes and returns a waiver of service form sent to him by the plaintiff by first class mail or other reliable means. The waiver "shall be in writing, addressed directly to the defendant, if an individual, or else an officer or managing general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under subdivision (h).
New York law permits service on a corporation by personal delivery "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service." New York Civil Practice Law and Rules ("CPLR") § 311 (McKinney 1990). CPLR § 312-a allows personal service on a corporation if the plaintiff mails the entity to be served, "by first class mail, postage prepaid, a copy of the summons and complaint, together with two copies of a statement of service by mail and acknowledgment of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender."
There is no indication in the record of this case that plaintiff has complied with either the federal or New York State statutory requirements to effect valid service on defendant FMA.
The Second Circuit has admonished, "[i]mplicit in the right of self representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). However, this protection "does not exempt a party from compliance with relevant rules of procedure and substantive law," Id. at 95, quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981), and that "ignorance of the law, even in the context of pro se litigants does not constitute good cause [under Rule 4 (m)]." Charles v. New York City Police Department, 1999 WL 771406 (S.D.N.Y. 1999).
Federal Rule of Civil Procedure 4(m) states that:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court . . . shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
In the instant case, over 120 days have elapsed after the filing of the complaint, and defendant FMA has not been served in the prescribed manner. A district court may "relieve a plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good cause shown." Fed.R.Civ.P. 4(m) advisory committee's note to the 1993 amendments. A Court contemplates a variety of factors in making this decision, including: "(1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiff's request for relief from this provision." Eastern Refractories Co. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 506 (S.D.N.Y. 1999). Here, the third factor is dispositive in favor of an order relieving plaintiff of the consequences of his failure to effect proper service. In FMA's motion papers, the affidavit of its counsel, Susan P. Katzoff, Esq., admits that "it [FMA] was served with the Summons and Complaint on or about April 27, 2000, and, also, that FMA thought it was to be included in the settlement Sears Roebuck Co. made with plaintiff. From these statements, the court feels that it is entirely safe to infer that FMA had full knowledge of the claims set forth in plaintiff's complaint.
Accordingly,
The Clerk's entry of Default is VACATED, and plaintiff's motion for a default judgment is DENIED because defendant FMA was not properly served with the summons and complaint in this action, and
Since it appears that service may still be made, FMA's motion to dismiss the complaint under Rule 12b(5) is DENIED, without prejudice to a renewed motion under Rule 12(b)(5) if plaintiff does not properly serve FMA within (60) days of the date of this order.