Opinion
6:20-CV-06168 EAW
2021-09-13
Jeffrey Blane HOUGHTALING, Plaintiff, v. OSI DOWN, Parole Officer John Pistello, Senior Parole Officer Oconner, Assistant Western Deputy Chief Jeff Jones, Defendants.
Jeffrey Blane Houghtaling, Rochester, NY, Pro Se. Heather Lynn McKay, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendants.
Jeffrey Blane Houghtaling, Rochester, NY, Pro Se.
Heather Lynn McKay, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Plaintiff Jeffrey Blane Houghtaling ("Plaintiff"), proceeding pro se , asserts claims against OSI Down, Parole Officer John Pistello, Senior Parole Officer Oconner, and Assistant Western Deputy Chief Jeff Jones ("Defendants") pursuant to 42 U.S.C. § 1983. (Dkt. 6). Presently before the Court are the following motions: Plaintiff's motion for default (Dkt. 14); Plaintiff's motion for a bench trial (Dkt. 17); and Plaintiff's motion for copies (Dkt. 20). For the reasons described below, Plaintiff's motions are denied.
DISCUSSION
I. Motion for Default
On November 9, 2020, Plaintiff filed a "Motion for Default," based on Defendants’ alleged failure to answer or otherwise respond to the complaint. (Dkt. 14 at 1). Before filing his motion, on November 3, 2020, Plaintiff filed both a "Request for Entry of Default" pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, directed to the Clerk of Court (Dkt. 9), as well as a "Request for Entry of Default Judgment for Sum Certain" pursuant to Rule 55(b)(1), also directed to the Clerk of Court (Dkt. 10). In support of his requests, Plaintiff asserted that the Defendants were served with the summonses and complaint on September 30, 2020, but failed to file an answer by October 21, 2020, and therefore were in default. (Dkt. 9 at ¶¶ 3-5; Dkt. 10 at ¶¶ 3-4). In connection with his motion for default judgment for sum certain, Plaintiff further asserted that he was entitled to damages in the amount of $400,000. (Dkt. 10 at ¶¶ 2, 6). Plaintiff also filed a "Declaration of Damages," explaining why he believes he is entitled to $400,000 in damages. (Dkt. 11).
Because Plaintiff's amended complaint alleges violations of 42 U.S.C. § 1983, Plaintiff is not entitled to entry of default for a sum certain by the Clerk of Court pursuant to Fed. R. Civ. P. 55(b)(1). "A ‘sum certain’ is a sum which is susceptible to reliable computation or determined by the court after an accounting." Ins. Co. of N. Am. v. S/S Hellenic Challenger , 88 F.R.D. 545, 548 (S.D.N.Y. 1980). Plaintiff's estimate of the damages to which he believes he is entitled does not fit this definition. Accordingly, the Court must determine the amount of damages if and when it determines that Plaintiff is entitled to a default judgment in his favor. See Miller v. Cnty. of Erie , No. 17-CV-00928W(F), 2019 WL 1244196, at *2 (W.D.N.Y. Feb. 27, 2019) (noting that the plaintiff's civil rights case required plaintiff to apply to the court for entry of a default judgment, because the damages he sought were not for a "sum certain"), adopted , 2019 WL 1243680 (W.D.N.Y. Mar. 18, 2019).
Thereafter, on November 6, 2020, counsel for Defendants filed a declaration, made in opposition to Plaintiff's request that the Clerk of Court enter default against Defendants. (Dkt. 12). Counsel argued that Defendants were not properly served because (1) they have not been personally served in compliance with Rule 4 of the Federal Rules of Civil Procedure, and (2) the individual named "April Fuller," who on the proof of service form is listed as being designated to accept service, is not designated to accept service on behalf of Defendants. (Id. at ¶¶ 4-6). That same day, Plaintiff filed "documents in support of Entry of Default and Judgment for Sum Certain," explaining that service was made at the NYS DOCCS parole office, that his process server was "forced to wait outside until April Fuller came out to acknowledge service and accept process," and that "[p]ursuant to NYS DOCCS own rules Directive 6930 the defendants were clearly served that day or the very next day." (Dkt. 13 at 1).
The Court turns first to Plaintiff's motion for default judgement. (Dkt. 14). Plaintiff cannot obtain a default judgment because default has not yet been entered as against Defendants. See Fed. R. Civ. P. 55 ; City of N.Y. v. Mickalis Pawn Shop, LLC , 645 F.3d 114, 128 (2d Cir. 2011) (" Rule 55 provides a ‘two-step process’ for the entry of judgment against a party who fails to defend: first, the entry of a default, and second, the entry of a default judgment."). Accordingly, Plaintiff is not entitled to a default judgment at this time, and his motion is denied without prejudice, subject to his obtaining entry of default against Defendants.
A separate but related issue raised by the parties is whether Plaintiff properly served Defendants. Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, a plaintiff may serve an individual by any of the following means:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). Service of process in New York is governed by section 308 of the Civil Practice Law and Rules ("CPLR"). According to CPLR 308(2), service can be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business[.]" CPLR 308(2) (emphasis added).
Plaintiff contends that he completed service at the parole office by leaving copies of the summonses and complaint with an individual named "April Fuller." The proofs of service initially submitted by Plaintiff state that the process server "served the summons on ... APRIL FULLER, who is designated by law to accept service of process on behalf of (name of organization)," with each defendant's name handwritten in the blank above "name of organization." (See Dkt. 8 at 1-4). After Defendants filed a declaration contesting service on November 6, 2020 (Dkt. 12), Plaintiff filed amended proofs of service on November 9, 2020, which include the same information contained in the proofs of service filed at Docket 8 except they are dated "11/9/2020," and contain a typed notation at the bottom stating that the defendants were served pursuant to the New York CPLR, that the recipient said she could accept service on their behalf, and that she provided a business card as identification. (See Dkt. 15 at 1, 3, 5, 7). The business card accompanying the proofs of service indicates that Ms. Fuller is a parole officer. (Id. at 2, 4, 6, 8). Plaintiff's amended proofs of service are not sufficient to establish that service on the individual defendants was proper. Plaintiff has not sued an organization—rather, he has sued four individual defendants—and defense counsel has submitted a sworn declaration stating that none of the defendants have authorized Ms. Fuller to accept service on their behalf. (Dkt. 12 at ¶ 6). Further, it does not appear from the record that Plaintiff personally served any of the defendants, or otherwise served them by any of the means delineated in Rule 4.
In support of his contention that he properly served Defendants, Plaintiff cites to NYS DOCCS Directive 6930, which provides, in relevant part:
II. RECEIPT OF SERVICE OF LAWSUITS
A. Service in General: All complaints and petitions seeking a legal remedy in State or Federal court, no matter how served upon DOCCS employees, former employees or health care contractors, should be immediately brought to the attention of the Inmate Records Coordinator (IRC) or Bureau Chief and then sent to the Office of the Attorney General (OAG) according to the directions below.... All service and attempts at service should be reported to the IRC or Bureau Chief and/or the OAG that same day or the very next business day.
Note: Attempts to serve a party through inter-facility mail are not legally sufficient. However, defendants will rely upon OAG to raise appropriate objections to service.
B. Accepting Personal Service of Current Employee: When service papers for a current employee are delivered to a facility or a regional office, the IRC, Bureau Chief, or other designated individual will contact the employee to whom the service is addressed.
1. If the complaint is accompanied by a "Statement of Service by Mail and Acknowledgement of Receipt by Mail of Summons and Complaint" (Attachment A); that form should NOT be signed or dated. However, DOCCS personnel MUST indicate on the "Statement of Service by Mail or Acknowledgement of Receipt by Mail of Summons and Complaint" (Attachment A) whether they are, or are not, in active military service.
2. If requested, the employee should be provided with a copy of the Complaint.
3. The Request for Representation letter, copies of ALL papers served and/or received by the employee, plus the unsigned and undated Acknowledgment of Receipt of Summons and Complaint MUST be sent that day or the next business day to the appropriate branch of the OAG that serves that bureau or facility. If the employee uses a DOCCS Microsoft Outlook e-mail account, that address should be noted in the letter.
...
4. DO NOT return the Acknowledgement of Receipt of Summons and Complaint to the Marshal's Service . The OAG will
sign and date the Acknowledgement of Receipt of Summons and Complaint and will send it to the Marshal's Service (or State court clerk). When a timely Request for Representation is received, the OAG will take appropriate steps to protect the DOCCS defendants’ rights.
(See Dkt. 13 at 1-3). Contrary to Plaintiff's implication, Directive 6930 does not create an alternative means of service by which Plaintiff may serve Defendants at their place of employment. Rather, Directive 6930 outlines the internal procedures the IRC or Bureau Chief should take when receiving a summons and complaint, including notifying any employees identified as defendants in the complaint, and the steps defendants should take to obtain representation by the Attorney General's Office, who will then "take appropriate steps to protect the DOCCS defendants’ rights" including, presumably, by raising defects in service.
In sum, because he has not properly served Defendants, and because default has not been entered against Defendants, Plaintiff's motion for a default judgment is denied. However, given his pro se status, the Court hereby exercises its discretion to grant Plaintiff an additional 90 days to properly serve Defendants by any of the means specified in Rule 4. See Felton v. Monroe Cmty. Coll. , No. 6:20-CV-06156 EAW, 528 F.Supp.3d 122, 134–36, (W.D.N.Y. Mar. 24, 2021) (granting pro se plaintiff additional time to properly serve defendants).
II. Motion for a Bench Trial
Plaintiff moves for a bench trial, citing to the obstacles presented by the COVID-19 pandemic and their impact on the disposition of his case, stating that he has decided to withdraw his jury trial demand and proceed with a bench trial before the Court. (Dkt. 17 at 2).
Plaintiff's amended complaint contains a demand for a jury trial. (See Dkt. 6 at 1 (noting "Jury Trial Demanded")). Although Plaintiff now seeks to withdraw that demand, "the right to a jury trial is a fundamental right," see S.E.C. v. Masri , 551 F. Supp. 2d 320, 321 (S.D.N.Y. 2008), and Plaintiff's unilateral request that his case be converted to a bench trial is not sufficient. Rule 39 of the Federal Rules of Civil Procedure provides, in relevant part:
(a) When a Demand Is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless:
(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or
(2) the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial.
Fed. R. Civ. P. 39(a). Accordingly, Plaintiff's case may only proceed as a bench trial if (1) the parties agree, on the record, to a nonjury trial, or (2) the Court finds that on some or all of the issues presented, there is no federal right to a jury trial. Neither of those exceptions apply here. Defendants, who have not yet answered Plaintiff's amended complaint, have not at this juncture agreed to proceed by way of a bench trial, and Plaintiff's case—brought pursuant to 42 U.S.C. § 1983 —is not one of those classes of cases where there is no federal right to a jury trial. The case will proceed as a jury trial unless Plaintiff and Defendants stipulate to a bench trial, and Plaintiff's motion is therefore denied. III. Plaintiff's Motion for Copies
On January 21, 2021, Plaintiff filed a letter addressed to the Clerk of Court, requesting copies of defense counsel's signed Sworn Attorney and Civility Principles Oath. (Dkt. 20 at 1). Although this letter is not directed to the Court, the Court notes that, in connection with his other pending case, Houghtaling v. Eaton , Case No. 14-cv-6416, Plaintiff attached to his motion for a restraining order filed on July 7, 2021, copies of defense counsel's Attorney's Oath and Civility Principles Oath. (See Houghtaling v. Eaton , Dkt. 214 at 9-10). Because it appears that Plaintiff is now in possession of the documents he seeks, his motion for copies is denied as moot.
CONCLUSION
Accordingly, for the foregoing reasons, Plaintiff's motion for default (Dkt. 14), motion for a bench trial (Dkt. 17), and motion for copies (Dkt. 20) are denied. Plaintiff is granted an additional 90 days to properly serve Defendants by any of the means specified in Rule 4 of the Federal Rules of Civil Procedure.
SO ORDERED.