United States District Court, D. Connecticut
R. ALEXANDER ACOSTA, SECRETARY OF LABOR, United states Department of Labor Plaintiff,
KATHRYN T. PUCCIO, Defendant.
MEMORANDUM OF DECISION AND SCHEDULING ORDER
Michael P. Shea, U.S.D.J.
Secretary of Labor brings this action against Kathryn T.
Puccio alleging violations of the Employee Retirement Income
Security Act, 29 U.S.C. § 1001 et seq. The Secretary
filed his complaint on March 29, 2018. (ECF No. 1.) After
granting two motions for extensions of time to serve the
complaint, I set a service deadline of October 1, 2018. (ECF
No. 11.) The Secretary filed an affidavit of service stating
that Ms. Puccio was personally served on October 16, 2018,
but she refused to take the documents. (ECF No. 12.) Ms.
Puccio failed to answer the complaint. Accordingly, on
January 24, 2019, I ordered the Secretary to file a motion
for default entry within 21 days. (ECF No. 13.) The Secretary
filed a motion for default entry on January 30, 2019 (ECF No.
14), the Clerk entered default on January 30, 2019 (ECFF No.
15), and the Secretary filed a motion for default judgment on
February 19, 2019. (ECF No. 16.)
March 12, 2019, Ms. Puccio filed a motion to set aside the
default. She acknowledged that she had received the summons
and complaint, but explained that as “a widowed
housewife whose formal education is limited to a high school
degree, ” she did not “understand that the
papers should have been forwarded to [her attorney].”
(ECF No. 17 at 1.) Defense counsel represented that he
reasonably expected that Ms. Puccio had “good
defenses” to the allegations in the complaint.
(Id. 1-2.) I granted the motion to set aside default
on April 17, 2019. (ECF No. 20.) I required Ms. Puccio to
file her responsive pleading within 14 days and counsel to
confer and file a joint Rule 26(f) Report within 21 days.
(Id.) I also reminded the parties of their
obligation under Fed.R.Civ.P. 1 to ensure a “just,
speedy, and inexpensive determination” of the
proceeding, particularly in light of the lengthy delays at
the outset of the case. (Id.)
Puccio has now filed a motion to dismiss the complaint for
lack of personal jurisdiction and for insufficient service of
process. (ECF No. 21 at 1-2.) She asserts that service of
process was untimely because the Secretary served the summons
and complaint on October 16, 2018-15 days after the
twice-extended deadline for service. (Id.) Further,
she explains, she is a “septuagenarian” and
“as time passes, [her] health and ability . . . to
participate in her defense do not increase . . . .”
(Id. at 2.) The Secretary opposes the motion. (ECF
No. 22.) He details his communication with Ms. Puccio's
former attorney about the claims before the filing of the
complaint and efforts at service after he instituted this
action. (Id.) In short, he asserts that Ms. Puccio
deliberately avoided accepting service until it became clear
that she faced financial consequences if the Court entered
default judgment. (Id.)
Secretary has shown good cause for failing to serve the
complaint within the deadline established by the Court. See
Counter Terrorist Grp. U.S. v. New York Magazine, 374
Fed.Appx. 233, 234 (2d Cir. 2010) (“Although a district
court must grant an extension [for service] where good cause
is shown, it may also grant a discretionary extension absent
such showing.”). In particular, the Secretary explains
that the process server attempted service at Ms. Puccio's
residence on multiple occasions, but the house appeared
vacant. He mailed a request for waiver of service, but
received no response. He was nevertheless able to serve Ms.
Puccio at her residence in October, suggesting that she had
been living at that location all along. Ms. Puccio also had
actual notice of the Secretary's claims against her
through the Secretary's discussions with her attorney
before the complaint was filed. Here, the only prejudice Ms.
Puccio identifies from the untimely service is her potential
inability to recall information relevant to her defense. The
parties jointly represent that, if the Court dismisses the
complaint for insufficient service of process, the Secretary
will simply refile the complaint, and Ms. Puccio's
attorney agrees that he will accept service on her behalf and
file an answer promptly. (ECF No. 24 at 1-2.) Thus,
dismissing the case now would only cause additional delay,
ultimately working to her detriment.
parties have also filed a joint motion for extension of time
to conduct a planning conference and file a report pursuant
to Local Rule 26(f). (ECF Nos. 23 & 24.) The parties
filed their motion one day before their report was due. Under
Local Rule 7(b), all motions for extensions of time must
“be filed at least three (3) days before the deadline
sought to be extended, except in cases in which compelling
circumstances warranting an extension arise during the three
days before the deadline.” The joint motion does not
describe any “compelling circumstances”
warranting a departure from the Local Rules. As a result, the
motion is DENIED. In view of the parties' apparent
unwillingness to cooperate to move this action forward, the
Court adopts the following schedule for this case:
• Plaintiff shall file her responsive pleading within 7
days of this order.
• All discovery will be completed, not propounded, by
November 8, 2019.
• Dispositive motions are due by December 8, 2019.
• If a dispositive motion is filed, the joint trial
memorandum will be due thirty days from the date of the
Court's decision on the motion. If no dispositive motion
is filed, the joint trial memorandum is due by January 10,
2020. The case will be considered trial ready immediately
upon the filing of the joint trial memorandum.
• The Court will hold a Telephonic Status Conference on
August 2, 2019 at 10:00 a.m. The Court will circulate dial-in
information via email. The parties will file a joint status
report by July 26, 2019.
• Plaintiff's expert reports are due August 9, 2019,
and depositions of Plaintiff's experts will be completed
by September 9, 2019. Defendant's expert reports are due
October 8, and depositions of Defendant's experts will be
completed by November 8, 2019.
Court is unlikely to grant extensions to this schedule, and
will not do so absent a showing of diligence and good cause.
The parties are responsible for following the appended
instructions regarding (1) joint status reports, (2)
discovery disputes, and (3) the joint trial memorandum, all
of which the Court hereby incorporates as part of this
Scheduling Order. Finally, defense counsel has not yet filed
an appearance in accordance with Local Rule 5(b). He shall
file an appearance within 7 days.
INSTRUCTIONS FOR STATUS REPORTS
before the deadline assigned by the Scheduling Order, the
parties shall file with the Clerk's Office, with
certification copies sent to all counsel of record, an
original joint status report, stating the following:
(a) The status of the case, describing the status of
discovery and identifying any pending motions and any
circumstances potentially interfering with the parties'
compliance with the scheduling order;
(b) Interest in referral for settlement purposes to a United
States Magistrate Judge or to the District's ...