Luellen v. Hodge, No. 6:2011cv06144 - Document 40 (W.D.N.Y. 2011)
Court Description: DECISION & ORDER denying 31 Motion for Default Judgment. Signed by Hon. Marian W. Payson on 12/12/2011. (KAH)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK SCOTT ERIC LUELLEN, DECISION & ORDER Plaintiff, 11-CV-6144P v. JOE DEAN HODGE, Defendant. Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 20). Currently pending before this Court is a motion for default judgment by plaintiff. (Docket # 31). Specifically, plaintiff contends that defendant failed to answer the complaint by August 2, 2011, or twenty-one days following the date of service on July 12, 2011, in violation of Federal Rule of Civil Procedure 12(a). (Id.). Defendant opposes the motion. (Docket # 32). A review of the docket reveals the following. Plaintiff filed the instant action on March 21, 2011. (Docket # 1). On June 21, 2011, the district court granted plaintiff s motion to proceed in forma pauperis and ordered the United States Marshal to serve the summons and complaint. (Docket # 7). On July 8, 2011, a summons was issued. (Docket # 8). The United States Marshal mailed the summons on July 12, 2011 and included a form entitled Statement of Service by Mail and Acknowledgment or Receipt by Mail of Summons and Complaint. (Docket # 14). That form explained that the summons and complaint were being served pursuant to Federal Rule of Civil Procedure 4(e)(1) and New York Civil Practice Law § 312-a. (Id.). Defendant signed the acknowledgment form on August 10, 2011 and answered the complaint on August 18, 2011. (Docket ## 9, 14). Under Rule 4 and N.Y. C.P.L.R. § 312-a, service may be effected by mailing a copy of the summons and complaint by first class mail. See Fed. R. Civ. P. 4(e)(1) (permitting service of a summons pursuant to state law); N.Y. C.P.L.R. § 312-a (permitting service by first class mail as alternative to other forms of personal service). Under New York law, a defendant may acknowledge service by mail within thirty days of receipt of the summons and complaint. N.Y. C.P.L.R. § 312-a(b)(1). Service is then complete on the date the signed acknowledgment is mailed or delivered to the sender. Id. The defendant must then answer the complaint within twenty-one days after service is complete. Fed. R. Civ. P. 12(a)(1)(A). The United States Marshal mailed the summons and complaint on July 12, 2011. Defendant signed the acknowledgment form twenty-nine days later on August 10, 2011, within the deadline set forth under § 312-a. Accordingly, under Rule 12, defendant had until August 31, 2011, to answer the complaint. His answer was filed on August 18, 2011. Thus, I find that defendant timely answered the complaint in compliance with Federal Rule of Civil Procedure 12(a), and plaintiff s motion for default (Docket # 31) is DENIED. IT IS SO ORDERED. s/Marian W. Payson MARIAN W. PAYSON United States Magistrate Judge Dated: Rochester, New York December 12 , 2011 2
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