Doe v. Bin Fahd Alsaud et al, No. 1:2013cv00571 - Document 36 (S.D.N.Y. 2014)
Court Description: OPINION. Given the reasoning in this Opinion, Plaintiff's motion is dismissed without prejudice. It is so ordered. Re: 34 FIRST MOTION for Entry of Default as to HRH PRINCE ABDULAZIZ BIN FAHD ALSAUD filed by Jane Doe. (Signed by Judge Robert W. Sweet on 4/3/2014) (rjm)
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UNITED STATES 01 RICT COURT SOUTHERN DISTRICT OF NEW YORK -------- -------------------- -X JANE DOE, 13 Civ. 571 Plaintiff, OPINION HRH PRINCE ABDULAZIZ BIN FAHD ALSAUD, SAUDI OGER LTD, and MUSTAPHA OUANES, Defendants. ---X A P PEA RAN C E S: At for PIa iff MORELLI ALTERS RATNER, PC 950 Third Avenue, 11th New York, NY 10022 By: Martha M. McBra r, Esq. Jeremy J. Troxel, Esq. \\ :1., I' ,~,_-" ~~..~~- Sweet, D.J. Plaintiff Jane Doe (the "Plaintiff") has moved for an entry of default judgment against defendant HRH Prince Abdulaziz Bin Fahd Alsaud (the "Prince") and an order for the payment of damages totaling $150,000,000 on the grounds that Defendant has failed to appear in this action and the time allowed for appearance has expired. Based on the reasoning below, Plaintiff's motion is denied. Prior Proceedings Plaintiff filed her original complaint on January 25, 2013 (the "Complaint") naming as defendants the Prince, Saudi Oger Ltd. ("Saudi Oger") d/b/a Hariri Interests Mustapha Ouanes ("Ouanes"). ("Hariri") and Non-party Hariri Interests moved to dismiss the complaint on April 1, 2013, and Plaintiff and Hariri Interests subsequently stipulated to dismiss the complaint against Hariri Interests with prejudice. Plaintiff filed the First Amended Complaint ("FAC") on May 7, 2013, removing Hariri Interests from the lawsuit and withdrawing the negligent hiring claim against Saudi Oger and the Prince. 1 Plaintiff's claims in the FAC arise from the sexual The FAC alleges that assault and rape of Plaintiff by Ouanes. on January 26, 2010, Ouanes invited Plaintiff and her female friend to accompany him from a lounge in the West Village to his hotel room at the Plaza Hotel. Plaintiff was drugged by Ouanes (FAC err 24.) (id. at err At about 5:30 a.m., 29), and awoke some time later to "realize [Ouanes] was raping her" (id. at err 30). In February 2012, after a two-week trial in New York (Manhattan) Criminal Court, Ouanes was convicted of rape and sexual abuse, and was sentenced to ten years in prison. (Id. at errerr 54-55.) The FAC alleges claims of respondeat superior and negligent supervision and retention against the Prince. To serve the Prince, Plaintiff delivered a Summons and the Complaint in an unmarked enveloped addressed to the Prince labeled as "Personal & Confidential" to a concierge at the Plaza Hotel, the Prince's alleged New York residence, on February 27, 2013. 7.) (Declaration of Martha M. McBrayer ("McBrayer Declo") The same day, err the Summons and Complaint in an unmarked enveloped addressed solely to the Prince and labeled as "Personal & Confidential" was mailed to "c/o The Plaza Hotel, 770 5th Avenue, 4th Floor, New York, New York." 2 (Id. err 8; see also ECF Dkt No.4.) On July 15, 2013, Plaintiff again mail a Summons and Complaint in an unmarked envelope addressed solely 1 to the Prince and as "Personal & Confidential" again to Declo 91 10.) the Plaza Hotel. The Prince did not re to the Summons and Complaint with an Answer or a mot FAC. Subsequently, Plaintiff to the Complaint or the a Clerk's Certificate pursuant to Rule 55(a) of the on October 4, 2013. of Civil Procedure Plaintiff ly moved for an entry of default judgment against the on October 11, 2013. The Prince has not opposed or otherwise eared in response to this motion or this action. Plaintiff Failed To Properly Serve The Prince Federal Rule of Civil P cess for obtaining a judgment See 2011) . t re 55 est de t estley v. Headminder, Inc., 647 F. lting party. 497, 504 (2d Cir. rst, the Clerk of the Court, upon notification from rty seeking affirmative relief, notes t that has failed to plead or otherwise de act ishes the . R. Civ. P. 55(a); Priestley, 3 lt of the in 647 F.3d at 504 05. Second, the plaintiff must seek a judgment under FRCP 55(b), following one of two procedures: The plaintiff may request that the Clerk of the Court enter judgment if the plaintiff's claim is for a sum certain (or a sum that can be made certain by computation), the defendant has failed to appear, and the Fed. R. Civ. defendant is neither a minor nor an incompetent. P. 55(b) (1); Priestley, 647 F.3d at 505. In all other cases, the party seeking a judgment by default must apply to the court pursuant to FRCP 55 (b) (2). Id. "When a party moves for a default judgment, Rule 55(b) of the Federal Rules of Civil Procedure permits a district court to conduct hearings or make referrals in order to, among other things, determine the amount of damages[,] establish the truth of any allegation by evidence[,] or investigate any other matter." Cement and Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. and Training Fund and Other Funds v. Metro Foundation Contractors Inc., 233 (2d Cir. 2012) (internal quotation marks omitted, alterations in original); see also Fed. R. Civ. (0). 699 F.3d 230, P. 55 (b) (2) (B) "A district court may enter a default judgment when a party has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure." 4 United States v. Brow, 267 96, 97 Fed. (2d Cir. 2008) a dist 72, 74 default judgment ct court." sition of in "the sound discretion 1S W1 Palmieri v. Town of Babylon, 277 Fed. Appx. 1 Serv., (2d Cir. 2008); Shah v. N.Y. State Dep't of r. 1999); Tamarin v. 168 F.3d 610, 615 (2d Inc., the di y noted t Second Circuit has repeat a motion (citing Fed. R. Civ. P. 55). 13 F.3d 51, 54 case law give (2d Cir. 1993) strict j Caterers, ("Rule 55(b) (2) and relevant s much discretion in ermining when it is 'necessary and proper' to hold an st on damages.") . However, "[aJ default judgment may not be grant r, if the process." fendant has not been ef ctively served with See O'Callaghan v. Sifre, 242 F.R.D. 2007); see also OS Recovery, Inc. v. One 02 69, 72 Int'l, Inc., No . . 8993(LAK), 2005 WL 1744986, at *1, 2005 U.S. 14860, at *2 (S.D.N.Y. July 26, 2005) (S.D.N.Y. st. LEXIS ("It is axiomatic, of course, that a court may not properly enter a default judgment ss it has jurisdiction over the whom t rson of the judgment is sought, which also means t been effectively served with process.") marks and citations omitted). Pla proving that service was adequate. 5 rty against he must have rnal quotation iff bears the burden of See Seli v. City New York, 08-cv-2096, 2009 WL 1883782, 2009 u.s. Dist. LEXIS 55207 (S. D. N . Y. June 30, 2009). Under Rule 4 (e) (1) of the Federal Rules of Civil Procedure, service of an individual may be made in accordance with local state law. New York CPLR § 308(2) allows personal service upon a natural person: [B]y 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 in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served . Plaintiff contends that service was proper pursuant to CPLR § 308(2) through the delivery of the Summons and Complaint to the Plaza Hotel, the Prince's alleged residence or dwelling. (McBrayer Decl. ~ 13.) New York law permits valid service by leaving a copy of the summons and complaint with a doorman at a defendant's residence or dwelling. 2d 134, 517 (1st Dep't 1998). Charnin v. Cogan, 673 N.Y.S. The dwelling place of a person 6 must place where or she actually dwells, 1 tzler v. inhabits. s or rz, 126 Misc. 2d 491, 482 N.Y.S.2d 986 (N.Y. Sup. Ct. 1984), on reargument, 129 Misc.2d 836, 494 N.Y.S.2d 649; Rich Products Corp. v. 273 N.Y.S.2d 687 (N.Y. amond, 51 Misc.2d 675, Ct. 1966). The Plainti f has not provi any evi beyond her conclusory allegations that the Plaza Hotel is the Prince's (See McBrayer Decl. or dwelling. res statements' that se ~ 10.) ce was properly effected are insufficient to carry [the] burden" that service was adequate. & Mk . Group, LLC v. See C3 Media rstgate Internet, Inc., 419 F. Supp. 2d 419, 427 (S.D.N.Y. 2005) Ma "'Conclusory {quoting HOv.lard v. Klyn d Peat ck Goerdeler, 977 F. Supp. 654, 658 (S.D.N.Y. 1997)); see also FDIC v. O'Connor, 94 Civ. 4218, 2008 u.s. 49219, at *4 (S.D.N.Y. 2008) ce not consi {se in the aff re conclusory statements pr ling place of the person se were re onte v. Suffolk County, CV 10 5398 (LOW) st. LEXIS 69465 (E.D.N.Y. 2012) service was t as to the contrary}; (GRB), 2012 U. S. rs the burden of credible evidence, that ranee of e). (plaintiff red proper by the wei fendant to o the evidence submitted by t proving, by a st. Lexis Moreover, "[a]n ent 7 of default be made only where there was willful default, involving more than a failure to answer as a re care 1988). ssness." t of negligence or See SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. An entry of default here, where Plaintiff has not shown proper service, would thus be improper. Conclusion Given the reasoning above, Plaintiff's motion is smissed without prejudice. It is so ordered. New York, NY April '"3 ' 2014 ROBERT W. SWEET 8
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