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Case 9:09-cv-80469-KAM Document 47 Entered on FLSD Docket 07/14/2009 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

JANE DOE II ) CASE NO.: 09-80469-CIV-MARRA/JOHNSON
)
Plaintiff, )
)
vs. )
)
JEFFREY EPSTEIN, )
and SARAH KELLEN, )
)
Defendants. )
/

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT KELLEN’S
MOTION TO SET ASIDE DEFAULT

Plaintiff, JANE DOE II, through counsel, opposes the Defendant SARAH KELLEN’S

Motion to Set Aside Default. Defendant KELLEN offers no proof that she did not actually

receive the service of process; she says she “contests” the efforts but offers no evidence

to contest the Affidavit of the process server, who made six (6) attempts to serve before

being forced to resort to “nail and mail” service, valid under New York law. Maines Paper

& Food Service, Inc. v. Boulevard Burgers Corporation, 52 A.D. 3d 1150, 861 N.Y.S. 2d 808

(N.Y.S.C., Appellate Division, June 26, 2008).

Defendant KELLEN first argues that Plaintiff’s Motion is defective because the

Plaintiff did not timely file the Affidavit of Service. However, a delay in filing proof of service

under CPLR 308 is merely a procedural irregularity, not jurisdictional, and may be corrected

nunc pro tunc by the court. Haegeland v Massa, 75 A.D. 2d 864; Hudela v Posner, 70 Misc

2d 726. If anything, the delay in filing the Affidavit of Service provided Defendant KELLEN

additional time to avoid being defaulted. An action is commenced with the delivery of a
Case 9:09-cv-80469-KAM Document

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