Carrillo v. Kay Waterproofing Corp.
- John Cronan
- 1:19-cv-01365-JPC
- U.S. District Court · Southern District of New York
- 2
In Carrillo v. Kay Waterproofing Corp., Judge Cronan extended service, denied default-judgment motions, and vacated default certificates.
The plaintiffs and the defendants Monster Construction LLC, Galicia Contracting and Restoration Corp., Saul Sosa, Ronald E. Duarte-Lopez, and Eric Hermosillo.
What happened
In Carrillo et al. v. Kay Waterproofing Corp. et al., the plaintiffs asked for more time to properly serve the amended complaint and summons on several defendants. They said the defendants received the amended complaint but not the required summonses because of an office error.
The court granted the request for more time and required service and proof of service by April 22, 2022. It denied the pending motions for default judgment, postponed the scheduled hearing indefinitely, and vacated the existing clerk’s certificates of default.
Judge John P. Cronan also required the plaintiffs to serve the defendants with the order and file proof of that service by March 24, 2022. The order allowed the plaintiffs to seek new default certificates and renew their request for default judgment if the defendants did not respond or appear.
The detailed version
- Carrillo v. Kay Waterproofing Corp. · No. 1:19-cv-01365-JPC
- John Cronan
- Mar. 22, 2022
Background
The plaintiffs asked for permission under Federal Rule of Civil Procedure 4(m) to serve the amended complaint and summons after the usual service period had ended. They stated that they had served the amended complaint on Monster Construction LLC, Galicia Contracting and Restoration Corp., Ronald E. Duarte-Lopez, and Eric Hermosillo on November 3, 2020, and on Saul Sosa on November 5, 2020. According to the plaintiffs, the papers did not include the required summonses because of an office error.
The plaintiffs argued that they had acted reasonably and diligently after discovering the error. They also stated that the defendants had actual notice of the claims and would not be prejudiced by additional time for proper service. The plaintiffs said that they intended to continue seeking default judgment against Monster Construction LLC, Galicia Contracting and Restoration Corp., Saul Sosa, Ronald E. Duarte-Lopez, and Eric Hermosillo.
Rulings
The court granted the plaintiffs’ request for an extension of time to serve the defendants with the amended complaint and summons under Rule 4(m). The plaintiffs were ordered to complete service and file proof of service by April 22, 2022.
The court denied the plaintiffs’ pending motions for default judgment, identified as Dockets 199–200, 204, and 214. The court adjourned the March 29, 2022 hearing on those motions indefinitely and vacated the clerk’s certificates of default entered against the defendants, identified as Dockets 154–159.
The court stated that if the defendants failed to respond to the amended complaint or appear within the time allowed by the Federal Rules of Civil Procedure, the plaintiffs could request new clerk’s certificates of default and renew their request for default judgment. The plaintiffs also had to serve the defendants with a copy of the order by overnight courier and file proof of that service by March 24, 2022. The Clerk of Court was directed to close the motions pending at Dockets 199 and 230.
Effect of the Order
The order addressed service and default procedures rather than deciding the underlying claims. It allowed the plaintiffs to attempt proper service, but it did not grant default judgment. The available opinion text states that the default-judgment motions were “denied” and then contains a truncated reference to “prejudice”; it does not clearly establish whether any additional qualifier was included.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.