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KOVALESKY v. A.M.C. ASSOCIATED MERCHANDISING CORP.

November 24, 1982

MARIA N. KOVALESKY, Plaintiff,
v.
A.M.C. ASSOCIATED MERCHANDISING CORPORATION, Defendant



The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM OPINION

 EDELSTEIN, District Judge:

 The plaintiff in this case was an employee of the defendant. The defendant fired her, and she now claims damages for tortious conduct, breach of contract and violation of statutes in the wage the defendant paid her while she was employed and in the defendant's action in discharging her. Jurisdiction arises under 28 U.S.C. §§ 1331 and 1343. The defendant has moved pursuant to F. R. Civ. P. 12(b) (5) and 12(b) (6) to dismiss the complaint for insufficiency of service of process and in the alternative to dismiss various aspects of the plaintiff's claim.

 FACTS

 According to the plaintiff, the defendant, Associated Merchandising Corporation ("AMC"), employed the plaintiff, Maria Kovalesky ("Kovalesky"), from July 19, 1967 until September 18, 1981. Kovalesky purchased shoes for AMC to resell. Her salary at the time of discharge was $19,500 a year.

 Kovalesky alleges that AMC underpaid her and did so for motives based on sex and national origin discrimination. Kovalesky asks for $250,000 in compensation.

 Kovalesky further alleges that AMC discharged her for reasons based on her sex, age and national origin in violation of federal statutes, New York tort law and her contract with AMC. She alleges that she has been unable to obtain suitable employment and that because of these injuries she is entitled to $750,000 in damages.

 AMC has moved to dismiss the complaint for insufficiency of service of process. In the alternative, AMC has moved to dismiss Kovalesky's claims under New York contract and tort law for failure to state a claim upon which relief can be granted. AMC has also moved to strike the amount of Kovalesky's claim for damages ensuing from her discharge that are not allowed under the federal statutes upon which she bases her claim.

 MOTION TO DISMISS FOR INSUFFICIENCY OF SERVICE

 F.R. Civ. P. 4(d) requires that service of a summons and complaint upon a corporation be done according to the method prescribed in Rule 4(d) (3), the method prescribed by a federal statute, or any acceptable state method. The method of serving a corporation in New York State appears in CPLR 311. Pursuant to all these methods, a summons and complaint may be served only on specified people.

 Affidavits submitted by AMC indicate that Kovalesky's process server did not serve any of the appropriate people with the summons and complaint, but instead threw the papers in AMC's lobby in front of a receptionist, who was not authorized by AMC to receive service. Kovalesky has made no effort to deny the allegations of AMC, but merely makes the conclusory statement that service was made pursuant to appropriate methods. The court finds, based on the parties' submissions, service was improper.

 This "sewer service" constitutes shoddy practice. It delays the process of justice and must be discouraged. This court has discretion to do just that. Haley v. Simmons, 529 F.2d 78, 80 (8th Cir. 1976); Richardson v. Ingram Corp., 374 F.2d 502, 503 (3rd Cir. 1967), cert. denied 389 U.S. 866, 19 L. Ed. 2d 139, 88 S. Ct. 134 (1967), affirming dismissal where there was no showing that there was "a reasonable prospect" of effectively serving the defendant; Gipson v. Township of Bass River, 82 F.R.D. 122, 126 (D.N.J. 1979) "court has broad discretion."

 Specifically, the court may quash service and order the plaintiff to reserve, or it may dismiss the action. Courts dismiss when the plaintiff has little likelihood of effecting proper service. Richardson, supra at 503. In these cases, to keep the case alive when the plaintiff cannot hope to acquire jurisdiction over the defendant through proper service unnecessarily burdens the courts. On the other hand, when the plaintiff can make proper service quickly, courts generally quash the faulty service without prejudice to the plaintiff to reserve. Alexander v. Unification Church, 634 F.2d 673, 675 (2d Cir. 1980) approving an order by district court refusing to dismiss where plaintiff could reserve; Grammenos v. C.M. Lemos, 457 F.2d 1067, 1071 (2d Cir. 1972) reversing the district court's dismissal because plaintiff could conceivably have effected service; Apex Pool Equipment Corp. v. Venetian Pools, Inc., 52 F.R.D. 48, 50 (S.D.N.Y. 1971) service of process "set aside" without prejudice to the plaintiff to re-serve; Davis v. Gahan, 227 F. Supp. 867, 872 (S.D.N.Y. 1964) quashing service, but denying motion to dismiss because it did "not appear that he [defendant] is not susceptible to proper service by compliance with the New York Statute. Cf. Krulikowsky v. Metropolitan District Council, 30 F.R.D. 24 (E.D.Pa. 1962)." *fn1" This rule evolved because if the plaintiff can reserve effectively and will re-file the case when dismissed, then dismissal adds nothing to an order quashing service except burdening the courts with added paper work. In this case AMC is a corporation with offices in New York and can readily be served there. Therefore, plaintiff's service is hereby set aside, without prejudice to continue this suit at such time as the plaintiff serves AMC properly.

 This case, however, is not one involving a mere technicality that the plaintiff ignored. Hence the plaintiff will pay the reasonable costs including attorney's fees, of the defendant's motion to dismiss for insufficiency of process. AMC will submit to the court a record of its ...


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