Fay v. City of Newburgh
- Nelson Roman
- 7:21-cv-03140
- U.S. District Court · Southern District of New York
- 6
In Fay v. City of Newburgh, Judge Roman set aside Donat’s default, denied dismissal, and allowed 30 days for proper service.
Joseph P. Donat’s default was set aside, but the claims against him were not dismissed. Naomi Fay was given until March 4, 2023, to properly serve Donat. The opinion does not state a ruling affecting the City of Newburgh.
What happened
In Fay v. City of Newburgh, Naomi Fay served Joseph P. Donat at Newburgh City Hall after his employment with the City had ended. Donat argued that he was never properly served and asked the court to set aside his default and dismiss the claims against him.
The court agreed that service was defective because City Hall was no longer Donat’s actual workplace when service was delivered. It therefore set aside the entry of default. But the court denied Donat’s request to dismiss the claims, reasoning that Fay should have an opportunity to serve him properly and that he had received sufficient notice of the case.
Judge Nelson S. Roman gave Fay 30 days to properly serve Donat. The court directed the clerk to vacate the default certificate and stated that failing to complete service by March 4, 2023, could result in dismissal of the claims against Donat.
The detailed version
- Fay v. City of Newburgh · No. 7:21-cv-03140
- Nelson Roman
- Feb. 2, 2023
Background
Naomi Fay sued the City of Newburgh and Joseph P. Donat, in both his individual and official capacities, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, and New York’s Human Rights Law. The opinion states that the action arose from allegations of sexual harassment, retaliation, and wrongful termination.
Fay filed affidavits stating that service on Donat was made on June 21, 2021, when Deputy City Clerk Katrina Cotton accepted delivery at Newburgh City Hall. Donat’s employment with the City had ended on May 23, 2021. Donat did not appear on the docket before Fay sought and obtained a clerk’s certificate of default on March 15, 2022.
Donat moved under Federal Rule of Civil Procedure 55(c) to set aside the entry of default. He also moved under Rules 12(b)(2) and 12(b)(5) to dismiss the claims against him for lack of personal jurisdiction and insufficient service of process. He argued that Fay’s time to serve him had expired.
Service and Default
The court held that Donat was not properly served. Under the applicable New York service rule, an individual may be served by delivering the summons to a suitable person at the individual’s actual place of business, dwelling, or usual place of abode. Because Donat no longer worked for the City when service was delivered to City Hall, City Hall was not his actual place of business at that time.
The court stated that proper service is required for personal jurisdiction—the court’s authority over a defendant—and that a default entered after defective service is legally invalid. The court therefore granted Donat’s motion to set aside the entry of default.
Dismissal Motion
The court denied Donat’s motion to dismiss. It explained that when service is improper, a court may either dismiss the action or cancel the defective service and extend the time for service. Here, the court concluded that Fay’s claims against Donat should be heard on their merits and that Donat had received sufficient notice of the action.
The court gave Fay 30 days to complete proper service. In the conclusion, it set the deadline as March 4, 2023, and stated that failure to complete service by that date could result in dismissal of the claims against Donat.
Disposition
Donat’s motion to set aside the entry of default was granted. Donat’s motion to dismiss was denied. The clerk was directed to vacate the default certificate against Donat and terminate the motion. The opinion does not state a disposition for Fay’s claims against the City of Newburgh.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.