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Soni v. Holtzer

UNITED STATES DISTRICT COURT District of New Jersey


January 4, 2007

RE: SONI
v.
HOLTZER

The opinion of the court was delivered by: Jose L. Linares United States District Judge

CHAMBERS OF JOSE L. LINARES JUDGE

MARTIN LUTHER KING JR. FEDERAL BUILDING & U.S. COURTHOUSE 50 WALNUT ST., ROOM 5054 P.O. Box 999 Newark, NJ 07101-0999 973-645-6042

NOT FOR PUBLICATION

LETTER OPINION

ORIGINAL TO BE FILED WITH THE CLERK OF THE COURT

Dear Parties:

Currently pending before the Court is a complaint filed by pro se Plaintiff, Shashibala Soni against Defendants Benjamin Z. Holczer, Esq.;*fn1 Steve Maniken;*fn2 Alan Nisselson, Esq.; retired federal bankruptcy Judge Francis G. Conrad; and Assistant United States Attorney Demetri Jones, Esq.*fn3 Although Plaintiff's complaint is largely incoherent, it appears that she claims that these defendants deprived her of her property without due process of law. Plaintiff has captioned her action, "Civil Action against Brooklyn Mafia Group." Defendants have not responded to the complaint.

On or about November 27, 2006, Plaintiff filed a motion for default judgment against Defendants. Plaintiff asked the Court to award her over $5.5 million in damages. Defendants Holczer, Nisselson, Judge Conrad, and AUSA Jones responded to this motion for the limited purpose of challenging service upon them pursuant to Fed. R. Civ. P. 4. They claim that service was improper and thus, the entry of default judgment would be improper.*fn4

Plaintiff claims that she served Defendants with the complaint by certified mail. She asserts that the an unspecified person in the Clerk's Office in this District told her that this was the proper way to serve Defendants.*fn5 A review of Plaintiff's summonses as filed on the docket in this case reveals that Holczer, Nisselson, Judge Conrad, AUSA Jones, and Maniken were sent copies of the complaint via certified mail to their purported business addresses. Plaintiff has submitted return receipt cards indicating that unknown persons signed for the packages sent to Nisselson, Holczer, and Maniken. Judge Conrad apparently signed for the package sent to him. Plaintiff did not submit a return receipt card for the package sent to AUSA Jones, but AUSA Jones acknowledges receiving a copy of the documents through inter-office mail.

The Court denies Plaintiff's motion for default judgment for the following reasons. First, the Court notes that Plaintiff has not submitted a request to the Clerk for an entry of default pursuant to Fed. R. Civ. P. 55(a). Further, Plaintiff has not shown that she properly served the Defendants in accordance with Fed. R. Civ. P. 4(e) and (i).

Plaintiff has not properly served defendant Nisselson because, in addition to other potential problems with the method of service, the certified mail package she sent was mailed to the wrong address - Nisselson is not employed and does not reside at 630 3rd Avenue, New York, New York.

Plaintiff has similarly failed to properly serve defendant Maniken. She sent a copy of the complaint to Maniken at 100 Federal Plaza, Central Islip, New York 11722. This is the address for the United States District Court for the Eastern District of New York. Plaintiff herself submitted to the Court a letter dated October 24, 2006 from the Clerk of the Eastern District of New York, Robert C. Heinemann, stating that although an employee in the mail room signed for the package, Maniken is not an employee of the district court or of the bankruptcy court in that district.

In addition, Plaintiff has failed to establish that her purported service of defendant Holczer, via certified mail at his business address, satisfies Rule 4(e). She did not personally serve Holczer, leave a copy of the complaint and summons with a suitable person at Holczer's residence, or serve an authorized agent of Holczer. See Fed. R. Civ. P. 4(e)(2). Further, Plaintiff has failed to show that her attempt to serve Holczer satisfies the requirements of New Jersey or New York law. See Fed. R. Civ. P. 4(e)(1).*fn6

Plaintiff also has failed to provide any proof that she served defendants Judge Conrad and AUSA Jones in accordance with the requirements for serving government employees pursuant to Rule 4(i). Specifically, there is no indication that Plaintiff properly served the appropriate United States attorney and the Attorney General as required by Rule 4(i)(1)(A). Further, to the extent that Judge Conrad and AUSA Jones are being sued in their individual capacities, Plaintiff has failed to show, for the reasons discussed above with regard to defendant Holczer, that they were served in accordance with Rule 4(e).*fn7

The Court further notes that even though Judge Conrad, AUSA Jones, Nisselson, and Holczer have notice of the instant action, the Third Circuit has made clear that " 'notice cannot by itself validate an otherwise defective service.' " See Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir. 1996) (quoting Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.3d 476, 492 (3d Cir. 1993)). Also, Plaintiff's pro se status does not excuse her from effecting proper service. See, e.g., Sykes v. Blockbuster Video, No. 06-1745, 2006 WL 3314518, at *2 (3d Cir. 2006) (indicating that a pro se litigant's "compliance with the Federal Rules of Civil Procedure is expected whenever he or she files a lawsuit in federal court").

Thus, the Court denies Plaintiff's motion for default judgment. The Court hereby notifies Plaintiff that her case is subject to dismissal pursuant to Rule 4(m) for failure to properly serve Defendants within 120 days of filing her complaint. Given Plaintiff's pro se status, Plaintiff has until February 5, 2007 to submit to the Court proofs of proper service in accordance with Fed. R. Civ. P. 4. Her failure to do so will result in this case being dismissed pursuant to Rule 4(m). An appropriate order accompanies this letter opinion.


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