Malcarne Contracting Inc. v. Progressive Casualty Insurance Company
- Garnett
- 1:24-cv-04244
- U.S. District Court · Southern District of New York
- 2
In Malcarne Contracting v. Progressive, Judge Garnett reset default-judgment deadlines and warned Progressive’s claim against Bautista could be dismissed for failure to prosecute.
Progressive Casualty Insurance Co., Sidewalk Repair NYC, Inc., Eden General Construction, Inc., and Juan Bautista, concerning Progressive’s third-party claims and possible default-judgment proceedings.
What happened
In Malcarne Contracting Inc. v. Progressive Casualty Insurance Co., the court addressed Progressive’s efforts to pursue claims against third-party defendants Sidewalk Repair NYC, Inc., Eden General Construction, Inc., and Juan Bautista. Progressive had filed proof that it served Sidewalk Repair and Eden later than the court’s earlier deadline.
The court changed the deadlines for a possible default-judgment motion against Sidewalk Repair and Eden. If they do not respond or appear by January 10, 2025, Progressive must file any default-judgment motion by January 20, 2025, and serve the required papers. The court also required Progressive to provide proof of service on Bautista or a letter describing its service efforts by January 10, 2025.
Judge Margaret M. Garnett warned that the court will dismiss Progressive’s claim against Bautista for abandonment or failure to prosecute if Progressive misses that January 10 deadline for both forms of filing. The order did not enter a default judgment.
The detailed version
- Malcarne Contracting Inc. v. Progressive Casualty Insurance Company · No. 1:24-cv-04244
- Garnett
- Jan. 2, 2025
Background
Progressive, identified in the order as a third-party plaintiff, sought instructions concerning a possible motion for default judgment against third-party defendants Sidewalk Repair NYC, Inc. and Eden General Construction, Inc. A prior court order required Progressive to serve that order on Sidewalk Repair and Eden by December 18, 2024, and file proof of service by December 19, 2024. Progressive filed proof of service on December 27, showing that service occurred on December 26. The court stated that future requests to extend deadlines must comply with the court’s Individual Rules and Practices and that untimely filings would not be accepted absent compliance.
Order regarding Sidewalk Repair and Eden
Because Progressive served Sidewalk Repair and Eden on December 26, the court modified its earlier order. If either entity does not respond to the third-party complaint or appear by January 10, 2025, Progressive must file any motion for default judgment by January 20, 2025. Sidewalk Repair and Eden may file opposition to any such motion by February 5, 2025. The court required Progressive to serve this order on them by first-class mail or in-person service within two business days and file proof of that service within three business days. If Progressive files a default-judgment motion, it must serve the motion papers by January 23, 2025, and file proof of service by January 24, 2025.
Order regarding Juan Bautista
A prior order required Progressive, by December 20, 2024, to file proof that it had served third-party defendant Juan Bautista or to file a letter describing its efforts to serve him and proposing next steps. The court stated that this deadline had passed. It ordered that, by January 10, 2025, Progressive must file either proof of service on Bautista or the required letter. If Progressive fails to do so, the court will dismiss Progressive’s claim against Bautista for abandonment or failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.
Disposition
The court modified its prior order and set service, response, opposition, and default-judgment deadlines. It did not grant or deny a motion for default judgment in this order. It also warned that it will dismiss the claim against Bautista if Progressive fails to meet the January 10 filing requirement.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.