DECISION AND ORDER INTRODUCTION In August 2019, Plaintiffs Luxottica Group S.p.A. (“Luxottica”) and Oakley, Inc. (“Oakley”) brought this trademark infringement action against Wafa Ali Inc. and two of its alleged owners or agents, Ali Saleh and Carmelo Gimeli. ECF No. 1. On October 3, 2019, the Clerk of Court filed an entry of default against Wafa Ali Inc. and Saleh after they failed to appear or otherwise defend.1 ECF No. 11. On June 23, 2021, the Court entered a default judgment against Defendants Wafa Ali Inc. and Saleh. ECF No. 34. In May 2023, Defendants moved to set aside the default judgment, arguing that service was not properly effectuated. ECF No. 35. Plaintiffs oppose the motion.2 ECF No. 38. For the following reasons, Defendants’ motion is GRANTED. DISCUSSION Defendants move to set aside the default judgment because they “never received a copy of the Summons and Complaint” and were therefore “unaware that an action was pending against them.” ECF No. 35 at 5. Federal Rule of Civil Procedure 55(c) permits a district court to “set aside a final default judgment under Rule 60(b).” Fed. R. Civ. P. 55(c). Rule 60(b), in turn, lists several grounds on which a court may rely to “relieve a party…from a final judgment.” Fed. R. Civ. P. 60(b). Under subsection (b)(4), a court may set aside a judgment if “the judgment is void.” Fed. R. Civ. P. 60(b)(4). This provision is unique because, “while relief under most provisions of Rule 60(b) is discretionary, relief under Rule 60(b)(4) is mandatory.”3 Vega v. Trinity Realty Corp., No. 14-CV-7417, 2021 WL 738693, at *4 (S.D.N.Y. Feb. 24, 2021). “One common reason that a void judgment issues is because of defective service that fails to properly put a defendant on notice of the complaint against him. Without proper service a court has no personal jurisdiction over a defendant.” Hawthorne v. Citicorp Data Sys., Inc., 219 F.R.D. 47, 49 (E.D.N.Y. 2003); see also Sartor v. Toussaint, 70 F. App’x 11, 13 (2d Cir. 2002) (summary order) (“A judgment is void for lack of personal jurisdiction over the defendant where service of process was not properly effected.”). Therefore, “[i]f service is improper, a default judgment rendered after such service…must be vacated.” Cablevision Sys. NY City Corp. v. James, No. 01-CV-8170, 2008 WL 821513, at *1 (E.D.N.Y. Mar. 24, 2008) (emphasis added). “Typically, the burden of proof in Rule 60(b)(4) motions is properly placed on the party asserting that the judgment is not void.” Singh v. Meadow Hill Mobile Inc., No. 20-CV-3853, 2023 WL 3996867, at *3 (S.D.N.Y. June 14, 2023). Although that burden shifts to the defaulting defendant if it “had actual notice of the original proceeding but delayed in bringing the motion,” De Curtis v. Ferrandina, 529 F. App’x 85, 85 (2d Cir. 2013) (summary order), where it is “in dispute whether the defendant had actual notice before the entry of default judgment,…the burden of proof properly remains with the plaintiff.” Weingeist v. Tropix Media & Ent., No. 20-CV-275, 2022 WL 970589, at *4 (S.D.N.Y. Mar. 30, 2022). The Court concludes that the default judgment must be set aside under Rule 60(b)(4) for lack of proper service. The Court begins by summarizing the relevant evidence in the record. On August 30, 2019, Plaintiffs purported to effect service by personally delivering copies of the summons and complaint to 597 West Broad Street in Rochester — Wafa Ali Inc.’s alleged principal place of business. See ECF No. 1 7; see also ECF Nos. 5, 7. The documents were left with Gimeli, who was described as a “Co-Worker” in Saleh’s affidavit of service, ECF No. 7 at 1, and as an “Officer…authorized to receive service” in Wafa Ali Inc.’s affidavit of service. ECF No. 5 at 1. On September 3, 2019, Plaintiffs also sent copies of the summons and complaint to Saleh at the same address via first-class mail. ECF No. 7 at 2. Ali Mohamed Saleh (Saleh’s son) and Gimeli have submitted affidavits in connection with Defendants’ motion. Saleh’s son states that he is the manager of Wafa Ali Inc. He notes that the business addresses of Wafa Ali Inc. have been “367 Lyell Avenue” and “43 Glenora Drive” for “more than ten years.” ECF No. 35-3 9. Saleh’s son alleges that they have not done business out of the West Broad Street address for more than ten years and that the company “do[es] not even deal in the business of sunglasses.” Id. 12. He avers that he did not learn of the lawsuit until January 2023, when he received a letter from an attorney notifying him of a related action in state court. See ECF Nos. 35-4, 35-5. Saleh’s son states that “to this day we have never received service of any papers relating to this lawsuit.” ECF No. 35-3 6. In his affidavit, Gimeli avers that he accepted service on August 30, 2019. See ECF No. 35-3 3. However, he denies that he agreed to “accept[] service on behalf of any other person, including…Saleh or Wafa Ali, Inc.” Id. 4. He denies having any “legal or corporate connection” to Defendants and denies having any authority to accept service on their behalf. Id.
5-6. Gimeli also avers that he never notified Defendants that he had been served on their behalf. Id. 7. Gimeli states that, in fact, 597 West Broad Street has not been the place of business for Wafa Ali Inc. since 2012. Id. 11. In response, Plaintiffs have submitted the affidavit of Brent H. Blakely, their lead counsel. ECF No. 40. Blakely avers that Plaintiffs had investigated the store located on West Broad Street in June 2019. At that time, the store was called Renee’s Clothing. The investigation revealed that Gimeli was an employee of Renee’s Clothing and sold counterfeit sunglasses. Gimeli told the investigator that the store was owned by “an unidentified ‘Arabic’ individual.” Id. 2. Although Blakely does not provide details, he states that further investigation “revealed that Wafa Ali, Inc.…and Ali Saleh were connected to both Renee’s Clothing and the associated address.” Id. 3. A contemporaneous search of the New York Secretary of State’s website revealed that Saleh was the CEO of Wafa Ali Inc. and had a principal executive address of 597 West Broad Street. See ECF No. 40-1 at 2. While the document that Blakely attaches to his affidavit corroborates that claim, it also indicates that Wafa Ali Inc.’s address for the service of process is the Glenora Drive address, not the West Broad Street address. See id. Considering this record, the Court concludes that Plaintiffs have failed to present sufficient evidence that service was properly effectuated with respect to either Saleh or Wafa Ali Inc. The Court first turns to Saleh. Federal Rule of Civil Procedure 4(e)(2) provides that an individual may be served by (A) delivering a copy of the summons and of the complaint to the individual personally, (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there, or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. See Fed. R. Civ. P. 4(e)(2)(A)-(C). Plaintiffs have not shown compliance with any of these methods. There is no evidence that Plaintiffs served the summons and complaint on Saleh personally or left the documents at his dwelling or usual place of abode. And even if the Court were to accept Plaintiffs’ allegation that Gimeli is an officer of Wafa Ali Inc. (and thus could accept service on the corporation’s behalf), ECF No. 5 at 1, Plaintiffs present no evidence that Gimeli was authorized to accept service on Saleh’s behalf. Alternatively, Plaintiffs could properly serve Saleh by following applicable state law. Fed. R. Civ. P. 4(e)(1). In New York, there are “five methods for serving an individual [under N.Y. C.P.L.R. §308]: (1) delivering the summons on the individual personally; (2) delivering the summons to the individual’s place of business or residence, as well as mailing the summons to the individual at his place of business or residence,…; (3) delivering the summons to an agent; (4) if neither 308(1) or 308(2) service can be made with due diligence, by affixing the summons to the door of the individual’s place of business or residence, as well as mailing the summons to the place of business or residence; or (5) if 308(1), 308(2), or 308(4) is impracticable, then delivering summons in a manner specified by the court.” Cyrus v. Lockheed Martin Corp., No. 20-CV-6397, 2022 WL 203750, at *3 (E.D.N.Y. Jan. 24, 2022) (citing N.Y. C.P.L.R. §308). Based on the affidavits of service, Plaintiffs appear to rely only on Section 308(2): papers were delivered to Gimeli at Saleh’s purported business address and mailed to Saleh at the same address. See ECF No. 7 at 1-2; see also Sackett v. Dirlam, No. 22-CV-6245, 2023 WL 4206520, at *6 (W.D.N.Y. June 26, 2023) (noting that papers may be delivered to an individual of “suitable age and discretion” at the defendant’s business address, which can include an “adult co-worker”). However, the Court concludes that Plaintiffs’ affidavit of service is insufficient to prove service under Section 308(2). The server, Douglas Thompson, avers that he “personally deliver[ed] and [left] the [papers] with CARMELO GIMELI, Co-Worker, a person of suitable age and discretion at that address, the actual place of [Saleh's] business.” ECF No. 7 at 1. But Thompson fails to explain how he came to the conclusion that Gimeli was Saleh’s “co-worker” — he simply identifies Gimeli as such. Because Thompson did not state the basis for his belief, his affidavit is insufficient to show proper delivery of the papers. See O’Hara v. Cohen-Sanchez, No. 22-CV-6209, 2023 WL 5979176, at *4 (E.D.N.Y. Aug. 28, 2023) (collecting cases); Wing Chan v. Xifu Food, Inc., No. 18-CV-5445, 2020 WL 5027861, at *2 (E.D.N.Y. Aug. 5, 2020); see also Assets Recovery 23, LLC v. Gasper, No. 15-CV-5049, 2018 WL 5849763, at *6 (E.D.N.Y. Sept. 11, 2018) (“New York law requires strict compliance with both the personal delivery and mailing requirements of CPLR §308(2).” (emphases added)). By contrast, in his sworn affidavit, Gimeli affirmatively avers that he did not work with or for Saleh during the relevant time period. ECF No. 35-3
