Court Records
Case 9:08-cv-80380-KAM Document 28 Entered on FLSD Docket 07/16/2008 Page 1 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
NO. 08-80380-CIV-MARla
JANE DOE NO. 4,
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
OPINION AND ORDER ON MOTION TO SET ASIDE
CLERK'S ENTRY OF DEFAULT
THIS CAUSE comes before the Court on Defendant Jeffrey Epstein's Motion to Set
Aside Clerk's Default (DE 11), filed June 13, 2008. The motion is now fully briefed and is ripe
for review. The Court has carefully considered the motion and is otherwise fully advised in the
premises.
On April 14, 2008, PlaintiffJane Doe No. 4 ("Plaintiff') filed the instant action against
Jeffrey Epstein ("Defendant"), alleging claims of sexual assault and intentional infliction of
emotional distress. (DE 1.) Plaintiff's process server attempted to deliver a copy of the
summons and complaint to Defendant personally on April 23, April 24, and May I, 2008, at his
residence in New York City. (DE 6.) None of these attempts were successful. On May 7, 2008,
the process server left a copy of the summons and complaint with "'John =' Assistant &
House Staff Employee who refused true name." (DE 6.) The process server also mailed a copy
of the summons and complaint to Defendant on May 12, 2008, via first class mail. (DE 6.) The
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envelope was marked "personal and confidential" and did not indicate that the envelope was
from an attorney or related to a legal action. (DE 6.)
Standard of Review
Rule 55(c) of the Federal Rules of Civil Procedure states that a "court may set aside an
entry of default for good cause." Fed. R. Civ. P. 55(c). The Court is vested with considerable
discretion in ruling on a motion to set aside an entry of default, and the Court's decision will only
be reviewed for abuse of discretion. v. US, 734 F.2d 735, 739 (11th Cir. 1984); Baez v.
S.S. Kresge Co., 518 F.2d 349, 350 (5th Cir. 1975).' "[D]efaults are seen with disfavor because
of the strong policy of determining cases on their merits." Florida Physicians Insurance Co. v.
Ehlers, 8 F.3d 780, 783 (1 Cir. 1993). To obtain relief under Rule 55(c), the movant must only
make a "bare minimum showing" to support her claim for relief. v. Harrell, 858 F.2d 667,
669 (11th Cir. 1988).
In evaluating whether a movant has demonstrated "good cause," courts have considered
several potential factors: whether the default was culpable or willful; whether setting the default
aside would be prejudicial to the opposing party; whether the defaulting party presents a
meritorious defense; whether public interests have been implicated; whether the defaulting party
has suffered significant financial losses; and whether the defaulting party acted promptly to
correct the default. Compania Interamericana Export-Import, S.A. v. Compania Dominicana de
Aviation, 88 F.3d 948, 951 (1 Cir. 1996). These factors are simply guidelines and are not
"talismanic." Id. While willfulness, prejudice, and a meritorious defense are the most often
'In Bonner v. City of Pritchard, 661 F.2d 1206, 1207 & 1209 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered
prior to October I, 1981.
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considered factors, "the failure of a district court to expressly consider them does not necessarily
constitute an abuse of discretion." KPS & Associates, Inc. v. Designs by FMC, Inc., 318 F.3d 1,
12 (1° Cir. 2003).
Discussion
Rule 4(e) of the Federal Rules of Civil Procedure states that an individual may be served
by "following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ.
P. 4(eX I). Alternatively, service may be made by leaving a copy of the summons and complaint
at the individual's place of abode "with someone of suitable age and discretion who resides
there." Fed. R. Civ. P. 4(e)(2)(B).
Plaintiff claims that service in this case is valid pursuant to either Fed. R. Civ. P.
4(eX2XB) or Florida law. Like the Federal Rules, Florida law requires that process be left at the
individual's usual place of abode "with any person residing therein who is 15 years of age or
older." Fla. Stat. § 48.031(1)(a). The affidavit of service (DE 6) states that the summons and
complaint were left with "John at Defendant's usual place of abode. From this
declaration, the Court cannot determine whether "John resides at the Manhattan
apartment. Further, Defendant has submitted the affidavit of Richard Barnett, who avers that he
received copies of the summons and complaint on May 7, 2008, from the process server. (DE 11
Ex. A.) Because Plaintiff has provided no indication to suggest that "John resides at the
apartment, the Court concludes that Plaintiff did not effect valid service on Defendant under Fed.
R. Civ. P. 4(eX2)(8) or Fla. Stat. § 48.031(1)(a).
The Court does not believe that Plaintiffs request for discovery on the issue of service is
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necessary, because service of process was made pursuant to New York law. Under New York
law, personal service may be made on an individual by
delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of
abode of the person to be served and by either mailing the summons to the
person to be served at his or her last known residence or by mailing the
summons by first class mail to the person to be served at his or her actual
place of business in an envelope bearing the legend "personal and
confidential" and not indicating on the outside thereof, by return address
or otherwise, that the communication is from an attorney or concerns an
action against the person to be served, such delivery and mailing to be
effected within twenty days of each other.
N.Y. C.P.L.R. § 308(2) (McKinney 2008) (emphasis added). New York law does not require
the person receiving the summons and complaint at the individual's place of abode to reside at
that location. See, e.g., Boston Safe Deposit and Trust Co. v. Morse, 779 F. Supp. 347, 350
(S.D.N.Y. 1991); Al Fayed v. Barak, 833 N.Y.S. 2d 500, 501 (N.Y. App. Div. 2007).
In this case, the affidavit of service states that "John was a person of suitable age
and discretion who accepted a copy of the summons and complaint at Defendant's actual
apartment. (DE 6.) Thus, under New York law, delivery of the summons and complaint to
"John was appropriate. Because the summons and complaint were mailed to Defendant
and delivered to his residence within twenty days of each other, Plaintiff took all necessary steps
to serve Defendant under New York law.
As Defendant recognizes, New York law also requires that proof of service be "filed with
the clerk of the court designated in the summons within twenty days of either such delivery or
mailing, whichever is effected later." N.Y. C.P.L.R. § 308(2). Here, Plaintiff is in compliance
with this requirement as well: delivery was made on May 7, 2008, and proof of service was filed
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ith the Clerk of the Court on May 27, 2008. (DE 4.) Thus, service was deemed complete as of
June 6, 2008, under New York law. See N.Y. C.P.L.R. § 308(2) (stating "service shall be
complete ten days after" filing of proof of service).
Nevertheless, Defendant's analysis is not entirely correct. In calculating when
Defendant's response was due, the Court turns to Fed. R. Civ. P. 12(a), which states that a
defendant must serve an answer within twenty days of being served with the summons and
complaint. Fed. R. Civ. P. 12(aXIXAXi). Under this rule, Defendant was required to respond to
the Complaint within twenty days from the receipt of the summons; the rule does not suggest a
longer period of time is available when substituted service is used to serve a defendant. While
Rule 4(eX1) allows Plaintiff to serve process on Defendant in the method permitted by New
York, Rule 4(e)(I) does not alter the twenty day period specified by Rule 12(a). In other words,
under Rules 4(e)(1) and 12(a), the Court is not bound by New York's proof of service filing
requirement nor New York's "completion" date in determining when Defendant's answer needed
to be filed. Beller & v. Tyler, 120 F.3d 21, 25-26 (2d Cir. 1997) (reconciling the deadlines
imposed by Rule 12(a) and N.Y. C.P.L.R. § 308). Instead, once Defendant received a copy of the
summons and complaint, Defendant had twenty days to respond. Id. ("[A] defendant has twenty
days from the receipt of the summons to file an answer .... This is so even if ... the defendant
is served pursuant to a state law method of service and the state law provides a longer time in
which to answer."). Thus, Defendant's response was due on May 27, 2007.2
'In Tyler, the court acknowledged that, because service was made in part by mail, the
defendant may have the benefit of three extra days to respond per Fed. R. Civ. P. 6(e). Tyler, 120
F.3d at 26. In this case, Plaintiff's server mailed the summons and complaint on May 12, 2008.
Thus, under this scheme, Defendant would have had until June 4, 2008, to respond. Either way,
Defendant failed to appear int his case until June 13, 2008.
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The Court is forced to conclude that Defendant, at this juncture, has not demonstrated
"good cause" to vacate the default. Defendant incorrectly argued that he timely responded to the
Complaint. Since he was mistaken in his position, he limited his argument to this point of law
and did not address the other requirements for setting aside a default, where a defendant's
appearance is, in fact, untimely. See, e.g., United Coin Meter Co., Inc. v. Seaboard Coastline
RR, 705 F.2d 839, 845 (6' Cir. 1983). Accordingly, it is ORDERED AND ADJUDGED that
Defendant's Motion to Set Aside Default (DE I I) is DENIED WITHOUT PREJUDICE.
Because Defendant did not address his motion to the issue of "good cause," and because it is the
policy of this Court to rule on the merits of a case whenever possible, see, e.g., IT Media,
Inc. v. Intelligentz Corp., No. 07-80535-CIV, 2008 WL 162754 (S.D. Fla. Jan. 16, 2008), the
Court grants Defendant leave to file a second motion to vacate the default. Defendant shall have
ten (10) days from the date of entry of this Order to file a second motion to vacate the Clerk's
entry of default.
DONE AND ORDERED in
Florida, this 16"' day of July, 2008.
Copies furnished to:
all counsel of record
Jeffrey Epstein, pro se
at West Palm Beach, Palm Beach County,
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KENNETH A. MARRA
United States District Judge
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