In Warner v. Berry, where the RIAA was suing a man who lives in a homeless shelter, the Magistrate Judge -- Hon. Kevin Nathaniel Fox -- recommended that the plaintiffs' application for a default judgment be denied, and that the plaintiffs be ordered to show cause why they should not be sanctioned under Rule 11. The Judge agreed that the default judgment should be denied, but chose not to sanction plaintiffs' attorneys.
The facts were as follows:
On April 9, 2007, the RIAA's process server had posted a copy of the summons and complaint on the door of the defendant's apartment, which the RIAA knew was not a good address.
On April 17, 2007, the plaintiffs requested a 60-day adjournment of a scheduled conference because their "attempts at service at Defendant's last-known address were
unsuccessful."Plaintiffs stated they were "now conducting a thorough address
investigation to locate a current address at which to serve Defendant before the
June 13, 2007 service deadline."
On April 25, 2007, Plaintiffs' process server executed an affidavit of service,
declaring that on April 9, 2007, at 3:50 p.m., she posted the summons by affixing
one copy "in a conspicuous place on the property known as: 1713 Adee Ave Apt. 1
Bronx, N.Y. 10469", which was the address they knew was a bad address.
Meanwhile, Magistrate Judge Fox observed that at the time of Plaintiffs' April 17, 2007, letter to this Court, which sought an adjournment of the pretrial conference so
that Plaintiffs could locate Defendant's current address, Plaintiffs "had already
resorted to the 'affix and mail' method of service because they affixed the
summons to the defendant's last known residence on April 9, 2007."
The Magistrate Judge found that "[b]y affixing the summons on April 9, 2007, the
plaintiffs demonstrated they never intended to conduct 'a thorough address
investigation ...' because they employed the 'affix and mail' method of service
without exercising due diligence to effect personal service pursuant to CPLR s
308(1) and (2)." Magistrate Judge Fox concluded that Plaintiffs' representation
to this Court to the effect that they intended to conduct an investigation to
locate Defendant's current address implicated Fed.R.Civ.P. 11(b) because it was
made for the improper purpose of unnecessary delay.
District Judge Harold Baer, Jr., agreed with the Magistrate in most respects, but declined to issue Rule 11 sanctions, because he felt the lawyers' misrepresentation was the result of sloppiness rather than an intention to mislead, "giving them as officers of the Court the benefit of the doubt":
While Plaintiffs' lawyers should be faulted for failing to keep closer tabs on
their process server and for failing to better supervise their paralegal, their
actions do not rise to the level of a Rule 11(b) violation. Plaintiffs' lawyers
might have been sloppy in their attempts to serve Defendant, but giving them as
officers of the Court the benefit of the doubt, all their representations to this
Court were, to the best of their knowledge, information and belief, not for the
improper purpose of unnecessary delay.
Opinion and Order denying default judgment* (2008 WL 1320969)
* Document published online at Internet Law & Regulation
Commentary & discussion:
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