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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80381-MARRA-JOHNSON JANE DOE NO. 5, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ________________________________/ MOTION TO SET ASIDE CLERK’S DEFAULT Defendant Jeffrey Epstein, pursuant to Fed. R. Civ. P. 55(c), hereby moves to set aside the clerk’s default entered on June 2, 2008, upon the following showing of “good cause.” Introduction The clerk’s default was entered prematurely. Service was effected as of June 2. Accordingly the response is due 20 days later, on or before June 23. See Fed. R. Civ. P. 12(a)(1)(A)(i). The plaintiff, in moving for a clerk’s default, implied that service was made in accordance with either federal or Florida procedure. As discussed below, however, service was clearly ineffective under the federal and Florida rules of Case 9:08-cv-80381-KAM Document 9 Entered on FLSD Docket 06/13/2008 Page 1 of 11 2 procedure. Accordingly, the only possibility for valid service was service under New York rules of procedure. Cf. RCP’s Lear, LLC v. Taughannock Aviation Corp., No. 5:07-CV-96, 2008 WL 305103, at *4 (N.D.N.Y. Jan. 31, 2008) (observing that “[a]s a threshold matter, the court must [first] address the rules pursuant to which process was served”). Service of process was valid under New York’s rule for so-called “substitute-service” (i.e., service in a manner other than delivery in-hand to the defendant herself or himself), but that statute gives the defendant more time to respond than do the federal or Florida rules. See id. (acknowledging that Fed. R. Civ. P. 4(e)(2) has a “‘resided therein’ requirement,” unlike “New York’s substituted service statute,” NY CPLR 308); NY CPLR 308 (providing that service is not deemed effected until 10 days after the process-server’s affidavit is filed with the Court). This is not a motion to quash, or a motion arguing that service was completely ineffective. To the contrary, we acknowledge that service was effective under New York procedure, but point out that it was ineffective under Florida and federal procedure. Federal Rule of Civil Procedure 4(e)(1) permits service to be made according to “state law for serving a summons in . . . the state . . . where service is made” as an alternative to following the federal service method (i.e., Rule 4(e)(2)). Case 9:08-cv-80381-KAM Document 9 Entered on FLSD Docket 06/13/2008 Page 2 of 11 3 As shown below, under New York’s so-called “substituted-service” rule, service was effected on June 2, not May 7 (as the plaintiff and the deputy clerk of court evidently believed). Accordingly, the defendant’s response to the complaint is not due until June 23. See Fed. R. Civ. P. 12(a)(1)(A)(i) (allowing 20 days from the date of service of process to serve answer). 1 Facts and Procedural History 1. On May 7, 2008, service was delivered at defendant Epstein’s house located at 9 East 71st Street, New York, New York, to Richard Barnett, an employee. 2. Mr. Barnett does not reside at that address. See Affidavit of Richard Barnett (attached as Ex. A). 3. Upon the plaintiff’s motion, 2 the Clerk of Court entered a clerk’s default on June 2, 2008. [D.E.5, 6]. 4. On June 6, the plaintiff filed a motion for judgment upon default. 3 [D.E. 7]. 1 In this case, the 20th day falls on a Saturday (June 21). The answer is therefore due on Monday, June 23. See Fed. R. Civ. P. 6(a)(3) (establishing that when a deadline falls on Saturday, the “period runs until the end of the next day that is not a Saturday”). 2 Notably, the plaintiff’s attorney never mailed Mr. Epstein a copy of his motion for a Clerk’s entry of default.   3 The plaintiff’s attorney here previously filed an identical action, captioned Jane Doe No. 1 v. Epstein, Case No. 08–80069-KAM, on behalf of a different plaintiff. That action was voluntarily dismissed by the plaintiff’s attorney after a motion to intervene was filed by Jane Doe Case 9:08-cv-80381-KAM Document 9 Entered on FLSD Docket 06/13/2008 Page 3 of 11 4 Overview of Rules for Service of Process The Federal Rules of Civil Procedure authorize three distinct methods of service in a diversity action. First, service can be effected in accordance with the procedures “in the state where the district court is located” (here, Florida). See Fed. R. Civ. P. 4(e)(1). Second, service can be effected in accordance with the procedures “in the state . . . where service is made” (here, New York). See Fed. R. Civ. P. 4(e)(1). Third, service can be effected in accordance with federal procedure. See Fed. R. Civ. P. 4 (e)(2). Cf. David D. Siegel, Practice Commentary on Rule 4 of the Federal Rules of Civil Procedure, Commentary C4-22 (observing that “there is no priority between the [authorized methods of service]”) (emphasis added). No. 1 (through her mother) indicating that neither Jane Doe No. 1 nor her mother had consented to the attorney’s filing the lawsuit on her behalf. See Case No. 08–80069-KAM [D.E. 9]. In addition to that action, the same plaintiff’s attorney here has filed four other, identical lawsuits against Jeffrey Epstein on behalf of four plaintiffs that are still pending before this Court: Jane Doe No. 2 v. Epstein, Case No. 9:08-cv-80119-KAM; Jane Doe No. 3 v. Epstein, Case No. 9:08-cv-80232-KAM; Jane Doe No. 4 v. Epstein, Case No. 9:08-cv-80380-KAM; and Jane Doe No. 5 v. Epstein, Case No. 9:08-cv-80381-KAM. Plaintiff’s counsel has sought an entry of default in each case. In the Jane Doe No. 2 litigation, the deputy clerk, identified on the docket as “tp,” declined to enter a default on the grounds that there had been “Improper Service.” See 9:08-cv-80119-KAM [D.E. 7, 8]. In the Jane Doe No. 3 litigation, the deputy clerk has not yet ruled upon the plaintiff’s motion. See Case No. 9:08-cv-80232-KAM [D.E. 5]. In the Jane Doe No. 4 and Jane Doe No. 5 litigation, the deputy clerk, identified on both docket sheets as “ail,” entered the default. See Case No. 9:08-cv-80380-KAM [D.E. 7, 8] and Case No. 9:08-cv- 80381-KAM [D.E. 5, 6]. Since then, the plaintiff’s attorney has moved for a judgment of default in those two cases (Jane Doe Nos. 4 and 5). See Case No. 9:08-cv-80380-KAM [D.E. 9] and Case No. 9:08-cv-80381-KAM [D.E. 7]. Case 9:08-cv-80381-KAM Document 9 Entered on FLSD Docket 06/13/2008 Page 4 of 11 5 Thus, when a diversity action is brought in the Southern District of Florida, and service is made in New York, service is effective when it complies with either Florida law or New York law, or alternatively, with federal procedure. As discussed below, because New York does not have a residency requirement for the person to whom substitute-service is delivered (and Florida and the federal rules do), service was effective only in accordance with New York procedure. Cf. RCP’s Lear, LLC, 2008 WL 305103, at *4 (resolving parties’ dispute concerning the intended method of service, and applicable procedure). Stated differently, service did not comply with either f