Acosta v. Puccio

          MEMORANDUM OF DECISION AND SCHEDULING ORDER

          Michael P. Shea, U.S.D.J.

         The 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.)

         On 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.)

         Ms. 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.)

         The 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.

         The 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.

         The 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.

         IT IS SO ORDERED.

         I. INSTRUCTIONS FOR STATUS REPORTS

         On or 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 ...