Valle v. GDT Enterprises, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAIME DAVID VALLE, individually and on

behalf of all others similarly situated,

Plaintiff,

OPINION & ORDER

-against- 19-CV-797(SJF)(AKT)

GDT ENTERPRISES, INC. d/b/a CROWN

STEAKHOUSE and GERARD MCCLOREY,

as an individual,

Defendants.

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FEUERSTEIN, District Judge:

I. Introduction

On February 8, 2019, plaintiff Jaime David Valle (“plaintiff”) filed a collective action

complaint against defendants GDT Enterprises, Inc. (“GDT”), d/b/a Crown Steakhouse, and

Gerard McClorey (“McClorey”) (collectively, “defendants”), seeking, inter alia, damages for

defendants’ alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et

seq.; and the New York State Labor Law (“NYLL”). Pending before the Court is defendants’

motion to dismiss plaintiff’s claims pursuant to Rule 12(b) of the Federal Rules of Civil

Procedure for insufficient service of process and failure to state a claim for relief. For the reasons

set forth below, the branch of defendants’ motion seeking to dismiss plaintiff’s claims for

insufficient service of process is granted and plaintiff’s claims are dismissed in their entirety.

II. Discussion

A. Service of Process

“Before a federal court may exercise personal jurisdiction over a defendant, the

procedural requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v.

Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987); accord

Dynergy Midstream Servs., LP v. Trammochem, 451 F.3d 89, 94 (2d Cir. 2006); see also

Waldman v. Palestine Liberation Org., 835 F.3d 317, 327 (2d Cir. 2016), cert. denied sub nom

Sokolow v. Palestine Liberation Org., 138 S. Ct. 1438, 200 L. Ed. 2d 716 (2018) (“To exercise

personal jurisdiction lawfully, . . . the plaintiff’s service of process upon the defendant must have

been procedurally proper.”) “[S]ervice of summons is the procedure by which a court having

venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the

party served.” Omni Capital, 484 U.S. at 104, 108 S. Ct. 404 (alteration in original) (quoting

Mississippi Publ’g Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S. Ct. 242, 90 L. Ed. 185

(1946)).

When a defendant moves to dismiss a complaint for insufficient service of process, “the

plaintiff bears the burden of proving adequate service.” Dickerson v. Napolitano, 604 F.3d 732,

752 (2d Cir. 2010) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005));

accord Vidurek v. Koskinen, --- F. App’x ---, 2019 WL 5152509, at * 2 (2d Cir. Oct. 15, 2019)

(summary order). “[W]here a court has not conducted a full-blown evidentiary hearing on the

motion, the plaintiff need make only a prima facie showing of jurisdiction through its own

affidavits and supporting materials[,]” Blau v. Allianz Life Ins. Co. of N. Am., 124 F. Supp. 3d

161, 173 (E.D.N.Y. 2015) (quotations and citation omitted), and “the court considers the parties’

pleadings and affidavits in the light most favorable to the non-moving party.” New York v.

Mountain Tobacco Co., 55 F. Supp. 3d 301, 308-09 (E.D.N.Y. 2014) (quoting Krape v. PDK

Labs Inc., 194 F.R.D. 82, 84 (S.D.N.Y.1999)); see also Johnson v. UBS AG, --- F. App’x ---,

2019 WL 5802323, at * 1 (2d Cir. Nov. 7, 2019) (summary order). However, “‘[c]onclusory

statements’ that service was properly effected are insufficient to carry that burden.” Blau, 124 F.

Supp. 3d at 173 (quoting C3 Media & Mktg. Grp., LLC v. Firstgate Internet, Inc., 419 F. Supp.

2d 419, 427 (S.D.N.Y. 2005)); see also Ahluwalia v. St. George’s Univ., LLC, 63 F. Supp. 3d

251, 260 (E.D.N.Y. 2014), aff’d, 626 F. App’x 297 (2d Cir. Sept. 22, 2015) (“To make ‘a prima

facie showing,’ the plaintiff must aver facts that, if credited by the ultimate trier of fact, would

suffice to establish jurisdiction over the defendant. . . . [C]onclusory statements by a plaintiff are

insufficient to overcome a defendant’s sworn affidavit that he was not served.” (quotations and

citations omitted)); Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387

(S.D.N.Y. 2002) (“Conclusory statements are insufficient to overcome a defendant’s sworn

affidavit that he was not served.”) In considering a motion to dismiss for insufficiency of

process, the Court “must look to matters outside the complaint to determine whether it has

jurisdiction[,]” Mountain Tobacco, 55 F. Supp. 3d at 309 (quoting Darden, 191 F. Supp. 2d at

387), i.e., whether service was sufficient. See George v. Professional Disposables Int’l, Inc., 221

F. Supp. 3d 428, 442 (S.D.N.Y. 2016).

Generally, Rule 4 of the Federal Rules of Civil Procedure governs service of process in a

federal lawsuit. See Omni Capital, 484 U.S. at 104, 108 S. Ct. 404. Absent a waiver of service

pursuant to Rule 4(d), a plaintiff must properly serve a summons and complaint upon a defendant

pursuant to one of the methods authorized by Rule 4 of the Federal Rules of Civil Procedure.

“Rule 4(e) generally provides that individuals may be served by either (1) following the relevant

state law procedures for service of the State where the district court is located or where service is

made, or (2) personal delivery, leaving a copy at the individual’s dwelling or usual abode with a

person who resides there, or delivering a copy to an agent authorized [by appointment or by law]

to receive process.” Vidurek, --- F. App’x ---, 2019 WL 5152509, at * 2 (citing Fed. R. Civ. P.

4(e)). Plaintiff did not use any of the methods prescribed by Fed. R. Civ. P. 4(e)(2) to serve

McClorey.

New York State law provides, in relevant part, that a natural person may be served:

“1. by delivering the summons within the state to the person to be served; or 2. 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; . . . or 3. by delivering the summons within the

state to the agent for service of the person to be served as designated under rule

318[1], . . . [or] 4. where service under paragraphs one and two cannot be made with

due diligence, 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 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 affixing and mailing to be effected within twenty days

of each other; . . . [or] 5. in such manner as the court, upon motion without notice,

directs, if service is impracticable under paragraphs one, two and four of this

section.”

N.Y. C.P.L.R. § 308 (emphasis added). “The requirements of section 308 are strictly enforced[,]”

Loria v. Desain, No. 18-cv-6541, 2019 WL 5394211, at * 3 (W.D.N.Y. Oct. 22, 2019); see also

1 Section 318 provides: “A person may be designated by a natural person, corporation or partnership as an agent for

service in a writing, executed and acknowledged in the same manner as a deed, with the consent of the agent

endorsed thereon. The writing shall be filed in the office of the clerk of the county in which the principal to be

served resides or has its principal office. The designation shall remain in effect for three years from such filing

unless it has been revoked by the filing of a revocation, or by the death, judicial declaration of incompetency or legal

termination of the agent or principal.” N.Y. C.P.L.R. § 318.

Hoffman v. Ighodaro, No. 16 Civ. 0155, 2016 WL 6093236, at * 4 (S.D.N.Y. Sept. 28, 2016),

report and recommendation adopted, 2016 WL 6092706 (S.D.N.Y. Oct. 18, 2016) (“It is well

established that the New York statutory regime for service must be followed strictly”), and

“[s]ervice pursuant to Section 308(2) is insufficient unless both the delivery and the mailing take

place as required by the statute.” Roesch v. Sullivan, No. 15 Civ. 247, 2016 WL 11484171, at * 7

(S.D.N.Y. Aug. 8, 2016), report and recommendation adopted, 2016 WL 4573991 (S.D.N.Y.

Aug. 31, 2016); see also Assets Recovery 23, LLC v. Gasper, No. 15-CV-5049, 2018 WL

5849763, at * 6 (E.D.N.Y. Sept. 11, 2018), report and recommendation adopted, 2018 WL

5847102 (E.D.N.Y. Nov. 8, 2018) (“New York law requires strict compliance with both the

personal delivery and mailing requirements of CPLR § 308(2).”); Wells Fargo Bank, N.A. v.

Heaven, 176 A.D.3d 761, 762, 109 N.Y.S.3d 162 (N.Y. App. Div. 2019) (“Personal jurisdiction

is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have

been complied with. . . . The mailing requirement of CPLR 308(2) is to be strictly construed.”)

Plaintiff submits an affidavit of service from his process server, Ralph M. Clark, dated

February 19, 2019, indicating that he served a summons for McClorey by leaving it at

McClorey’s “place of business,” identified as GDT, 106 Bedford Avenue, Bellmore, New York

11710, with “Stephanie McVangh – Co-worker, Auth. to Accept,” a person of suitable age and

discretion who works there2, on February 14, 2019 at 4:25 p.m., and mailing a copy thereof to

McClorey’s “last known place of business,” the name and address of which is not identified,

which was “[m]ailed personal and confidential on 2/19/19.” (Declaration of Roman

Avshalumov, Esq., [“Avshalumov Decl.”], Ex. B). The process server does not, inter alia,

2 The process server described “Stephanie McVangh” as being a “White Female, Brown hair, 30-35 yrs., 5’2-5’4,

160 lbs.” (Avshalumov Decl., Ex. B).

indicate that the summons was mailed by first class mail to McClorey at his actual place of

business or to the same address at which he delivered the summons to “Stephanie McVangh,”

nor does he identify the name or address of the “last known place of business” to which the

summons was mailed. Accordingly, the affidavit of service did not establish prima facie that

service was properly effected pursuant to N.Y. C.P.L.R. § 308(2). See, e.g. Heaven, 176 A.D.3d

at 763, 109 N.Y.S.3d 162 (dismissing the complaint for lack of personal jurisdiction where the

process server’s affidavit of service failed to indicate to what address the papers were mailed and

plaintiff proffered no further evidence of compliance with the mailing requirement of Section

308(2)); Aurora Loan Servs., LLC v. Revivo, 175 A.D.3d 622, 624, 107 N.Y.S.3d 87 (N.Y. App.

Div. 2019) (finding that the plaintiff failed to meet its burden of proving that jurisdiction was

obtained where the process server failed to indicate the address to which the summons and the

complaint were mailed and, thus, failed to demonstrate that service of the summons and

complaint had been properly effectuated in compliance with Section 308(2)); Deutsche Bank

Nat’l Trust Co. v. Ferguson, 156 A.D.3d 460, 461, 64 N.Y.S.3d 887 (N.Y. App. Div. 2017)

(finding that the mailing component of CPLR 308(2) was not strictly complied with where the

affidavit of service indicated “that the summons and complaint were mailed to defendant’s ‘last

known address,’ without identifying that address.”) Furthermore, the affidavit of service does not

indicate that a copy of the complaint was mailed with the summons. See Fed. R. Civ. P. 4(c)(1)

(“A summons must be served with a copy of the complaint.”)

On the other hand, McClorey asserts in his affidavit in support of the motion to dismiss

that “[s]ometime during the week of February 18 – 22, 2019, [he] found a copy of the Summons

only, in an envelope with [his] name on it, stuck in the security gate by the restaurant door. There

was nothing else with it and it had been left during a time when the restaurant was closed.”

(McClorey Aff., ¶ 8). In opposition to defendants’ motion, plaintiff offered no further evidence

of compliance with the mailing requirements of N.Y. C.P.L.R. § 308(2) or the service

requirements of Fed. R. Civ. P. 4(c)(1). Accordingly, plaintiff has not satisfied his burden of

proving adequate service upon McClorey.

With respect to GDT, which is a corporate entity, plaintiff “was required to effect service

either (1) in the manner required under New York . . . law or (2) by delivering a copy of the

summons and complaint to certain corporate officers or an agent authorized to receive service of

process.” Obot v. Navient Sols., Inc., 726 F. App’x 47, 48 (2d Cir. Mar. 19, 2018) (summary

order) (citing Fed. R. Civ. P. 4(e)(1), (h)(1)(A)-(B)). Under New York state law, a corporation

may be served by delivering the summons “to an officer, director, managing or general agent, or

cashier or assistant cashier or to any other agent authorized by appointment or by law to receive

service.”3 N.Y. C.P.L.R. § 311.

“In tendering service, the process server may rely upon the corporation’s employees to

identify the individuals authorized to accept service[,]” Old Republic Ins. Co. v. Pacific Fin.

Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002), provided such reliance is “reasonable.”

Augustin v. Apex Fin. Mgmt., No. 14 Civ. 182, 2015 WL 5657368, at * 3 (E.D.N.Y. July 27,

2015), report and recommendation adopted, 2015 WL 7430008 (E.D.N.Y. Nov. 23, 2015)

(citing Old Republic, 301 F.3d at 57); accord Shengjian Zhuang v. Hui’s Garden Rest. Inc., No.

17-cv-7547, 2019 WL 1578193, at * 1 (E.D.N.Y. Feb. 19, 2019). However, “[a] process server’s

reliance has been found unreasonable when he made no attempt to ascertain the title or corporate

3 Section 311 of the New York Civil Practice Law and Rules further provides that “[a] business corporation may

also be served pursuant to section three hundred six or three hundred seven of the business corporation law.” The

New York Business Corporation Law, inter alia, authorizes service on the secretary of state as agent of a domestic

or authorized foreign corporation, see N.Y. Bus. Corp. L. § 306(a)-(b); and service on an unauthorized foreign

corporation, see N.Y. Bus. Corp. L. § 307. Neither section is applicable to this case, as plaintiff does not assert that

he served the secretary of state as agent of GDT, nor that GDT is an unauthorized foreign corporation served in

accordance with N.Y. Bus. Corp. L. § 307.

position of the individual who accepted the papers or even to inquire whether the individual was

actually an employee of the defendant corporation.” Shengjian Zhuang, 2019 WL 1578193, at *1

(quotations and citation omitted); accord Trustees of Empire State Carpenters Annuity,

Apprenticeship, Labor-Mgmt. Cooperation, Pension & Welfare Funds v. R. Baker & Son All

Indus. Servs., Inc., No. 13-CV-4590, 2014 WL 6606402, at * 3 (E.D.N.Y. Aug. 4, 2014), report

and recommendation adopted, 2014 WL 4536911 (E.D.N.Y. Sept. 11, 2014).

Plaintiff submits an affidavit from his process server, dated February 19, 2019,

indicating, inter alia, that he served a summons for GDT on “Stephanie McVangh – Managing

Agent, Auth. to Accept, who is designated by law to accept service of process on behalf of GDT

. . .” on February 14, 2019. (Avshalumov Decl., Ex. B). The process server does not indicate,

inter alia, the basis for his conclusory statements that the individual who he identifies as

“Stephanie McVangh” was a “Managing Agent . . . who is designated by law to accept service of

process on behalf of GDT,” or was otherwise authorized to accept process on behalf of GDT.

See, e.g. Shengjian Zhuang, 2019 WL 1578193, at * 2 (finding that the process server’s failure to

explain how he knew that a “Jane Doe” was authorized to accept service suggested that “service

was not made to a person authorized to accept service.”); Baity v. Kralik, 51 F. Supp. 3d 414,

430 (S.D.N.Y. 2014) (finding that the plaintiff failed to demonstrate proper service where the

affidavit of service only identified the individual who accepted service and stated that such

individual “is designated by law to accept service on behalf of [the defendant],” but included no

indication that the individual was actually authorized to accept service on behalf of the

defendant, or that she represented the same to the process server).

On the other hand, defendants have provided a sworn affidavit indicating that Stefanie

Kavanagh (“Kavanagh”), the part-time waitress to whom the summons was delivered, and who

is incorrectly identified as “Stephanie McVangh” on plaintiff’s affidavits of service, was not

authorized to accept service on behalf of GDT and never told the process server that she was.

(See Affidavit of Stefanie Kavanagh [“Kavanagh Aff.”], ¶¶ 3, 6, 8). Plaintiff has not provided

any evidence to rebut those assertions or to otherwise demonstrate that Kavanagh was authorized

by defendants to accept service of process on behalf of GDT or informed the process server that

she was. Accordingly, plaintiff has not satisfied his burden of burden of proving adequate service

upon GDT. See, e.g. Oyewole v. Ora, 291 F. Supp. 3d 422, 430 (S.D.N.Y. 2018), aff’d, 776 F.

App’x 42 (2d Cir. Sept. 4, 2019), reh’g and reh’g en banc denied (2d Cir. Oct. 16, 2019).

Moreover, “the simple fact that [the defendants] obtained a copy of the . . . [summons

and] complaint against [them] is insufficient for service to be deemed effective under New York

law.” Gerena v. Korb, 617 F.3d 197, 202 (2d Cir. 2010); see also Ruffin v. Lion Corp., 15

N.Y.3d 578, 583, 915 N.Y.S.2d 204, 940 N.E.2d 909 (N.Y. 2010) (“Defendant’s actual receipt of

the summons and complaint is not dispositive of the efficacy of service.”); Macchia v. Russo, 67

N.Y.2d 592, 595, 505 N.Y.S.2d 591, 496 N.E.2d 680 (N.Y. 1986) (“In a challenge to service of

process, the fact that defendant has received prompt notice of the action is of no moment. . . .

Notice received by means other than those authorized by statute does not bring a defendant

within the jurisdiction of the court.”)

Since plaintiff did not request a waiver of service pursuant to Rule 4(d) of the Federal

Rules of Civil Procedure, and the methods of service indicated in plaintiff’s affidavits of service

do not satisfy any of the methods of service described in Rules 4(e)(2) or (h), or comply with the

service procedures of New York state law, see N.Y. C.P.L.R. §§ 308 and 311, plaintiff’s service

of process was insufficient. Moreover, plaintiff has not presented a colorable excuse for his

neglect, nor requested an opportunity to cure any defects in the service of process. Accordingly,

the branch of defendants’ motion seeking dismissal of plaintiff’s claims for insufficient service

of process is granted and plaintiff’s claims are dismissed in their entirety for lack of personal

jurisdiction.4

III. Conclusion

For the reasons set forth above, the branch of defendants’ motion seeking to dismiss

plaintiff’s claims for insufficient service of process is granted and plaintiff’s claims are

dismissed in their entirety without prejudice for lack of personal jurisdiction.

SO ORDERED.

____/s/ Sandra J. Feuerstein__

Sandra J. Feuerstein

United States District Judge

Dated: January 28, 2020

Central Islip, New York

4 In light of this determination, the Court does not address the branch of defendants’ motion seeking dismissal of

plaintiff’s claims on the merits pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.