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Case 9:09-cv-80469-KAM Document 42 Entered on FLSD Docket 06/23/2009 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-CV-80119-Marra/Johnson
JANE DOE No. 2
Plaintiff,
vs.
SARAH KELLEN,
Defendant.
_____________________________/
MOTION TO SET ASIDE ORDER OF DEFAULT
Defendant Sarah Kellen, pursuant to Federal Rule of Criminal Procedure 55(c), hereby moves
to set aside the Order of Default entered on June 17, 2009 (DE 39). There is good cause to set aside
the default, because plaintiff did not make proper service under New York law. Alternatively, even
if proper service was made, the time for a responsive pleading has not expired.
Plaintiff did not execute proper service under New York law. Federal Rule of Civil
Procedure 4 states in pertinent part that a party 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.” See Fed. R. Civ. P. 4 (e)(1). Here, plaintiff asserts that service
was effected under the New York law for personal service upon a natural person, specifically
N.Y.C.P.L.R. §308(4). That law states that where personal service cannot be made, despite due
diligence, substituted service can be made “by affixing the summons to the door of either the actual
place of business, dwelling place or usual place of abode within the state of the person to be served
and by either mailing the summons to such person 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.”
Case 9:09-cv-80469-KAM Document 42 Entered on FLSD Docket 06/23/2009 Page 2 of 3
It further requires “such affixing and a mailing to
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