Frometa v. Tabu Lounge Inc.
- Vyskocil
- 1:20-cv-01660-MKV
- U.S. District Court · Southern District of New York
- 4
In Frometa v. Tabu Lounge, Judge Vyskocil denied default judgment against Carlotta Chevere because she likely lacked notice of the case and motion.
The ruling directly affected the plaintiffs’ effort to obtain a default judgment against Carlotta Chevere. It left the underlying wage claims unresolved in this order and did not grant judgment against Chevere.
What happened
In Frometa v. Tabu Lounge Inc., the plaintiffs sought a default judgment—a judgment based on a defendant’s failure to participate—against Carlotta Chevere in wage-related claims under federal and New York law. Chevere had not appeared in the case.
The court found that the plaintiffs had not properly served Chevere with notice of the second default-judgment motion. The address used was allegedly the location of a restaurant Chevere had sold years earlier, and the plaintiffs’ later investigation showed that the address was a storefront rather than Chevere’s residence. Those filings also raised serious doubt about whether Chevere had ever been properly served with the lawsuit itself.
The court denied the second motion for default judgment, canceled the hearing, and denied as moot the plaintiffs’ request for more time or permission to provide notice by email or text message. Judge Mary Kay Vyskocil did not enter a default judgment.
The detailed version
- Frometa v. Tabu Lounge Inc. · No. 1:20-cv-01660-MKV
- Vyskocil
- Aug. 8, 2022
Background
Levi Frometa and the other plaintiffs asserted claims under the Fair Labor Standards Act, a federal wage-and-hour law, and New York Labor Law against several defendants, including Carlotta Chevere. The plaintiffs alleged that they were underpaid for work at a restaurant where Chevere was the “owner/manager” until she sold her interest to other defendants. The other defendants appeared and settled; Chevere never appeared.
The plaintiffs previously sought a default judgment against Chevere. The court denied that first motion because the complaint did not allege enough facts to show that Chevere was an “employer” under the federal wage law, including facts showing that she exercised direct control over the plaintiffs’ employment. The plaintiffs then filed a second motion with more detailed allegations.
Service and Notice
The plaintiffs’ earlier affidavit said that Chevere had been personally served with the amended complaint at her “actual place of abode,” identified as 227 Dyckman Street, New York, New York. The plaintiffs also mailed the second default-judgment motion and related hearing materials to that address.
The court directed the plaintiffs to personally serve Chevere with notice of the hearing. The plaintiffs later reported that they could not find her. Their affidavits stated that 227 Dyckman Street was a clothing store, that a nearby restaurant did not know Chevere, that the location had no entrance to a residential building, and that another address they investigated did not exist. The plaintiffs requested additional time or permission to serve notice by email or text message.
Court’s Ruling
The court held that the plaintiffs’ own submissions showed that Chevere was not properly served with notice of the second default-judgment motion. Service must provide notice reasonably calculated to inform the affected person. Mailing the motion to an address alleged to be a restaurant that Chevere had sold several years earlier did not meet that standard. A default judgment based on defective service would be legally invalid.
The court also expressed concern that Chevere might never have been properly served with the lawsuit. Although an affidavit of service ordinarily provides initial evidence that service was effective, the plaintiffs’ later affidavits seriously undermined their earlier statement that Chevere had been personally served at 227 Dyckman Street.
The court denied the plaintiffs’ second motion for default judgment. It canceled the hearing and denied as moot the plaintiffs’ request for more time to complete personal service or to use email or text messages. The Clerk of Court was directed to terminate the motions at docket entries 57 and 64. The order did not enter a default judgment and did not resolve the plaintiffs’ underlying wage claims against Chevere.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.