Volfman v. Marron Pastry INC

Background

Joseph Volfman filed the complaint on December 20, 2022. He served Marron Pastry Inc. and 270 Bleecker Street LLC through the New York Secretary of State on January 11, 2023. The defendants did not appear or answer by the February 1, 2023 deadline.

The court directed Volfman to seek a default judgment, meaning a judgment requested because the defendants had not responded. After Volfman requested an extension, the court gave him 30 additional days. Volfman then obtained certificates of default from the Clerk, but did not promptly take the additional steps required to seek a default judgment. The court later directed him to file a proper motion, identified deficiencies in his application, and gave him one week to correct them.

Default-judgment motion

On May 18, 2023, the court ordered Volfman to serve the order seeking default judgment on the defendants by registered mail and by any known email addresses, and to file proof of service. Volfman filed a certificate of service and postal receipts. But Local Civil Rule 55.2(c) required the papers to be mailed to each defendant’s last known business address.

The court stated that the registered address for Marron Pastry Inc. was 3167 Coney Island Ave., 1st Floor, Brooklyn, New York 11235, and the registered address for 270 Bleecker Street LLC was 280 Madison Ave., Room 801, New York, New York 10016. Volfman had used those addresses when seeking summonses. Instead, he mailed the order to show cause to both defendants at 270 Bleecker Street, New York, New York 10014, an address to which neither defendant was registered. The tracking information showed that the documents were never delivered.

Because Volfman did not properly serve the default-judgment motion, the court held that it did not comply with Local Civil Rule 55.2 and denied the motion for default judgment.

Dismissal for failure to prosecute

The court also considered whether to dismiss the case under Federal Rule of Civil Procedure 41(b), which permits dismissal when a plaintiff fails to properly pursue the litigation. The court considered the length of Volfman’s failures, the repeated warnings that continued failures could result in dismissal, possible prejudice from further delay, the balance between court efficiency and the right to a fair hearing, and whether lesser sanctions would be effective.

The court found that at least four factors favored dismissal. It emphasized that Volfman’s failures lasted several months, that he received repeated warnings, and that the court had allowed three attempts to seek default judgment while addressing the deficiencies. The court therefore dismissed the matter under Rule 41(b). It directed the Clerk to terminate all pending motions, adjourn the July 19, 2023 hearing, and dismiss the matter.