Newman v. Katz

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MAURICE NEWMAN, Plaintiff, 1:24-CV-6681 (LTS) -against- ORDER MITCHELL KATZ (PRESIDENT), et al., Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff Maurice Newman, who appears pro se, proceeds with this action in forma pauperis (“IFP”). While the Court has granted Plaintiff IFP status, the Court has not directed the Clerk of Court to issue him summonses, as the Court is still reviewing this matter pursuant to the relevant provisions of the IFP statute, 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).1 Thus, Plaintiff could not have had the defendants properly served pursuant to Rule 4 of the Federal Rules of Civil Procedure. Because service has not been performed properly, Plaintiff’s motion for default judgment (ECF 12) is denied. See Johnson v. Progressive Corp. Ins. Co., No. 19-CV-2902 (CM), 2019 WL 2314858, at *2 (S.D.N.Y. May 30, 2019) (“The Court properly denied Plaintiff’s motion for entry of a default judgment. Plaintiff failed to provide proof of service of a summons and complaint. In fact, the Court never issued a summons. Defendant therefore was not in default.” (footnote omitted)), appeal dismissed, No. 19-1688 (2d Cir. Oct. 23, 2019); Gayle v. Larko, No. 18-CV-3773 (ER), 2018 WL 10669559, at *2 (S.D.N.Y. Aug. 23, 2018) (“Service was improper,

1 There is no indication on the court’s docket of this action that the Clerk of Court has issued any summonses in this action. An event indicating the issuance of summonses is normally entered on the docket when summonses are issued. among other reasons, because the Court had not issued a summons for any of the Defendants at the time that Plaintiff mailed the complaint. Accordingly, the Court denies Plaintiff’s motion for entry of default judgment.”). Accordingly, the Court also denies as moot Defendants’ requests for an extension of time to oppose that motion. (ECF 14.)

The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and, therefore, IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: October 29, 2024 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge