Jimenez-Fogarty v. Fogarty

The Order addressed three matters: the plaintiff’s motion to disqualify, the proposed First Amended Complaint, and the plaintiff’s request for permission to file a motion for default judgment.

Motion to Disqualify

The plaintiff’s counsel filed a reply supporting the pro se plaintiff’s motion to disqualify, which appeared at Docket Nos. 34 and 37. The court found that both the original moving papers and the reply contained numerous factual statements without citations to evidence in the record. The court’s Individual Practices required factual statements in a legal memorandum to be followed by citations to record documents. Because the filing failures made it impossible for the court to properly evaluate the motion, the court denied the motion for disqualification without prejudice to a new motion filed by counsel that fully complies with the specified court practices.

The court also stated that evidence relied on should ordinarily be presented as a sworn statement or as a document supported by a sworn statement.

Proposed Amended Complaint

To move the case forward, the court set February 25, 2025, as the deadline for the plaintiff to request a pre-motion conference before filing a motion to amend. The request had to attach the proposed pleading. Before submitting that request, the plaintiff was directed to provide the proposed pleading to all defendants who had appeared to determine whether they would consent to the amendment.

The court also required the plaintiff to confer with defendants about redactions needed in a publicly filed version of the proposed pleading. If the parties could not agree, the proposed pleading could be filed under seal until the court resolved the issue, with the redaction dispute presented by a letter filed on the court’s electronic filing system.

If the plaintiff chose not to request permission to amend, the plaintiff’s attorney, Tricia Sophia Lindsay, was required by February 25, 2025, to file a letter or affidavit containing the certification text specified in the Order and signed by counsel. The certification concerned the absence of an improper purpose, the legal and factual support for the First Amended Complaint, and the expected evidentiary support for factual allegations. The court stated that signing the certification would mean that Ms. Lindsay fulfilled and became subject to the requirements of Federal Rule of Civil Procedure 11(b). If the plaintiff continued with the First Amended Complaint, the parties also had to confer about a redacted version for public filing and promptly present any disagreement to the court.

Request to File Default Judgment

The court found that counsel’s letter concerning service of process did not establish proper service on Judge Sherri Eisenpress or Judge Thomas Zugibe. The court stated that the plaintiff had not cited authority showing that a supervising clerk was authorized to accept service for those individuals under Federal Rule of Civil Procedure 4(e)(2)(C). The court also stated that, if the plaintiff relied on New York Civil Practice Law and Rules § 308(2) through Federal Rule of Civil Procedure 4(e)(1), the plaintiff had not provided evidence showing that all required steps, especially mailing, had occurred.

The deadline to complete service on Eisenpress and Zugibe under Federal Rule of Civil Procedure 4(m) was February 13, 2025. The court stated that any request for additional time should be made promptly and should show good cause.

The court agreed that the record showed proper service on Laura Marino, provided that the process server had verified her identity. The plaintiff was therefore permitted to seek a certificate of default from the Clerk under Local Civil Rule 55.1. The court did not permit a default-judgment motion against Marino at that time. Any such motion had to await the conclusion of the case because some claims might involve joint liability with co-defendants. Within seven days after the claims against all other defendants were adjudicated, the plaintiff could refile the letter requesting permission to move for default judgment against Marino.

Disposition

Judge Gabriel W. Gorenstein denied the motion for disqualification without prejudice, set procedures and deadlines concerning the proposed amended complaint, permitted the plaintiff to seek a certificate of default against Laura Marino, and required the request for permission to move for default judgment against Marino to await adjudication of the claims against the other defendants.