Tenesaca v. Gemelli Restaurant Group Inc.
- Alison Nathan
- 1:19-cv-10976-AJN
- U.S. District Court · Southern District of New York
- 2
In Tenesaca v. Gemelli Restaurant Group, Judge Nathan ordered plaintiff to update service, pursue default procedures, and serve the order.
Plaintiff Walter Tenesaca and defendants Giovani Ferraioli, Mario Benforte, Gemelli Restaurant Group, Inc., and Mamica, Inc.; the order imposed deadlines and warned of possible dismissal for failure to prosecute.
What happened
Tenesaca v. Gemelli Restaurant Group involved the plaintiff’s failure to respond to an earlier order about serving Giovani Ferraioli and Mario Benforte. The court had not received proof of service, a service update, or a notice voluntarily dismissing those defendants.
The court ordered the plaintiff to respond to the earlier order by April 3, 2020. It also ordered the plaintiff, within two weeks, to seek a certificate of default and move for default judgment against Gemelli Restaurant Group, Inc. and Mamica, Inc., or explain why such a motion should not be filed. The plaintiff also had to serve this order on all defendants and file proof of service by April 3.
Judge Alison J. Nathan warned that failing to comply could lead to dismissal of the plaintiff’s claims for failure to prosecute. The court did not dismiss the claims in this order.
The detailed version
- Tenesaca v. Gemelli Restaurant Group Inc. · No. 1:19-cv-10976-AJN
- Alison Nathan
- Mar. 31, 2020
Background
The court referred to its March 6, 2020 order, which required Plaintiff Walter Tenesaca to file proof that Defendants Giovani Ferraioli and Mario Benforte had been served, provide a status update about service, or file a notice voluntarily dismissing those defendants under Federal Rule of Civil Procedure 41(a). The deadline had been March 13, 2020, but the court had not received a response.
The court also stated that, according to an affidavit of service filed on December 20, 2019, Gemelli Restaurant Group, Inc. and Mamica, Inc. were required to answer or otherwise respond to the complaint by December 26, 2019. The court had not received answers from those defendants.
Orders
The court ordered Tenesaca to respond to the March 6 order no later than April 3, 2020. Within two weeks of the order, Tenesaca was required either to seek a certificate of default and move for default judgment against Gemelli Restaurant Group, Inc. and Mamica, Inc., following the court’s procedures, or file a status update explaining why a motion for default judgment should not be filed at that time. A certificate of default is a court-recognized record that a defendant failed to respond; default judgment is a judgment requested on that basis.
The court additionally required Tenesaca to serve the order on all defendants and file affidavits of service through the court’s electronic filing system by April 3, 2020. Judge Alison J. Nathan warned that failure to comply with the order could result in dismissal of Tenesaca’s claims for failure to prosecute. The order itself did not dismiss any claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.