Shalto v. Astoria Provisions LLC
- Rearden
- 1:22-cv-08737
- U.S. District Court · Southern District of New York
- 2
In Shalto v. Astoria Provisions LLC, Judge Rearden denied the default-judgment motion as moot and ordered Shalto to seek default judgment or explain the delay.
Lesaldo Shalto must either file a new default-judgment motion or show cause by January 29, 2024, complete the ordered service steps, and file proof of service. Astoria Provisions LLC and Corner Building Corp. are affected because the prior entry of default was struck and they may respond to any new motion under deadlines the court may later set.
What happened
In Shalto v. Astoria Provisions LLC, Lesaldo Shalto sued Astoria Provisions LLC and Corner Building Corp. After the court raised a question about whether Shalto had standing, it allowed him to file an amended complaint. Shalto then filed that complaint.
Because the amended complaint replaced the earlier complaint, the court found that Shalto’s pending request for a default judgment was no longer live. The defendants were served with the amended complaint but did not respond or appear, and Shalto had not filed a new request for a default judgment.
The court denied the earlier default-judgment motion as moot and ordered Shalto, by January 29, 2024, either to file a proper new request for a default judgment or explain why the case should not be dismissed for lack of prosecution. Judge Rearden also ordered additional service steps and directed the clerk to strike the prior entry of default.
The detailed version
- Shalto v. Astoria Provisions LLC · No. 1:22-cv-08737
- Rearden
- Jan. 19, 2024
Background
Lesaldo Shalto filed the complaint on October 13, 2022, against Astoria Provisions LLC and Corner Building Corp. He later moved for default judgment, which is a judgment requested because a defendant has not responded to the lawsuit.
On June 5, 2023, the court raised a question about standing—whether Shalto had the required legal connection to bring the case—and ordered him either to seek permission to file an amended complaint that adequately alleged standing or to explain why the case should not be dismissed for lack of standing. The court granted permission to amend on November 17, 2023, and Shalto filed a First Amended Complaint.
Rulings and Orders
The court held that filing the First Amended Complaint replaced the earlier complaint. As a result, Shalto’s pending motion for default judgment, which concerned the earlier pleading, was no longer live. The court therefore denied that motion as moot. The clerk was directed to terminate the motion at ECF No. 29 and strike the entry of default at ECF No. 27.
The defendants were served with the First Amended Complaint on November 27, 2023. Their answers were due on December 18, 2023, but they had not responded or appeared as of the date of the order. Because Shalto had not filed a new motion for default judgment, the court ordered him, by January 29, 2024, either to file a proper motion for default judgment or to show why the case should not be dismissed for failure to prosecute.
The order required Shalto to serve any default-judgment motion and supporting papers on the defendants by January 29, 2024, and file an affidavit confirming service by January 31, 2024. It also required him to serve a copy of the order on the defendants by overnight courier by January 25, 2024, and file proof of that service within two business days. The order states that failure to submit a timely and proper motion may result in dismissal without prejudice; it did not itself dismiss the case. If a new motion were filed and service were established, the court would set deadlines for opposition and reply and might schedule a default-judgment hearing.
Nature of the Order
This was a procedural order. It addressed the status of a default-judgment motion, service, and possible failure to prosecute; it did not decide the underlying claims or make a final ruling on standing.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.