Faican v. Lenox Parking Garage LLC
- Gregory Woods
- 1:23-cv-10633
- U.S. District Court · Southern District of New York
- 3
In Faican v. Lenox Parking Garage, Judge Woods scheduled a hearing on Ronald Massie’s motion challenging service of process.
John Faican, Ronald Massie, and the other defendants in the case, particularly Massie because the order concerns whether Faican properly served him.
What happened
In Faican v. Lenox Parking Garage LLC, defendant Ronald Massie, who is representing himself, asked the court to dismiss John Faican’s claims against him because Massie argued that he was not properly served with the lawsuit. The parties’ filings raised a factual dispute about whether service complied with New York law, including whether Massie was served at his actual place of business.
The court did not decide Massie’s motion. Instead, it scheduled an evidentiary hearing for October 18, 2024, and a teleconference for October 4, 2024, to discuss the hearing. Faican must prove at the hearing that service was proper. Massie was expected to attend if he wished to continue pursuing his motion, or the court would consider the motion abandoned if he did not appear.
Judge Gregory H. Woods also ordered Massie to attend the teleconference personally unless a qualified lawyer appeared for him, denied fee-free appeal status for any appeal from the order, and directed Faican to serve the order on all defendants.
The detailed version
- Faican v. Lenox Parking Garage LLC · No. 1:23-cv-10633
- Gregory Woods
- Sept. 27, 2024
Background
Plaintiff John Faican sued Lenox Parking Garage, LLC, and others. Defendant Ronald Massie, who was representing himself, filed a motion asking the court to dismiss the claims against him for insufficient service of process.
Issue
The parties’ submissions raised a factual dispute about whether Massie was properly served under New York Civil Practice Law and Rules § 308(2). The specific dispute included whether service occurred at Massie’s “actual place of business.”
Court’s action
The court determined that an evidentiary hearing was necessary to resolve the factual dispute. It scheduled the hearing for October 18, 2024, at 2:00 p.m. in Courtroom 12C of the Daniel Patrick Moynihan United States Courthouse. The court directed that all evidence concerning service be presented at that hearing.
The court reminded Faican that he bears the burden of proving that service was proper and must establish that fact by a preponderance of the evidence at the hearing. The court did not grant or deny Massie’s dismissal motion in this order. It stated that Massie was expected to attend the hearing if he wished to continue pursuing the motion; if he failed to appear, the court would consider the motion abandoned.
The court separately scheduled a teleconference for October 4, 2024, at 11:00 a.m., to discuss the evidentiary hearing. Massie was ordered to attend personally unless he retained a lawyer admitted in the Southern District of New York who appeared for him at the conference.
Other directions and disposition
The court certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and therefore denied fee-free appeal status for that purpose. It directed Faican to serve a copy of the order on all defendants and retain proof of service.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.