Cortes v. Corned Beef Express, LLC

UNITED STATES DISTRICT COURT USDC SDNY DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED DOC #: BEATRIZ CORONA CORTES, individually DATE FILED: 12/17 /2021 and on behalf of all others similarly situated, et al.

20-cv-3546 (MKV) Plaintiffs, ORDER DENYING MOTION -against- FOR DEAULT JUDGMENT CORNED BEEF EXPRESS, LLC et al., Defendants.

MARY KAY VYSKOCIL, United States District Judge: On December 3, 2021, the Court held a hearing on Plaintiffs’ motion for a default judgment [ECF No. 44]. For all of the reasons stated on the record at the hearing, the motion is DENIED. As the Court explained, it is not clear that the individual defendants were ever properly served with the complaint. If Plaintiffs’ counsel maintains that such service was proper, by January 14, 2022, counsel must file an affidavit explaining the bases for believing that each individual defendant resided at the address where the complaint was delivered and that service was otherwise proper under Rule 4 of the Federal Rules of Civil Procedure and New York Law.

In the alternative, Plaintiffs must properly serve the individual defendants, and file proof of such service on ECF, by January 14, 2022. Moreover, Plaintiffs are not entitled to default judgment against the individual defendants if Plaintiffs fail to state claims against the individual defendants as employers. See Irizarry v. Catsimatidis, 722 F.3d 99, 104–105 (2d Cir. 2013) (explaining the test for whether a defendant is an employer). As the Court also explained on the record at the hearing, Plaintiffs failed to properly serve the defendant companies with the default judgment motion and the Court’s Order scheduling the hearing.

Plaintiffs are on notice that failure to take all steps necessary to move this case towards a resolution might result in dismissal with prejudice for failure to prosecute.

The Clerk of Court is respectfully directed to terminate the motion at docket entry 44.

SO ORDERED. i .

Date: December 17, 2021 MARY Kv “colt New York, NY United States District Judge