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NEW YORK TRANSP., INC. v. NAPLES TRANSP.

October 10, 2000

NEW YORK TRANSPORTATION, INC., IGOR PLOTNIK AND NINA PLOTNIK, PLAINTIFFS,
V.
NAPLES TRANSPORTATION, INC., GETAWAY DISPATCHING, INC., ANTHONY PISCOPO, EDWARD STRANZ AND MURRAY KUFELD, DEFENDANTS.



The opinion of the court was delivered by: Block, District Judge.

MEMORANDUM AND ORDER

BACKGROUND

The following allegations are drawn from the complaint, which the Court accepts as true for purposes of this motion. In October 1995, Plotnik purchased the assets of Cape Transportation, Inc. ("Cape") from Piscopo and Stranz. Cape operated Getaway Car Service, a car service business based in Brooklyn, New York. Plotnik formed New York Transportation to receive the assets purchased from Cape, and operate as an independent car service business.

Subsequent to the transfer, New York Transportation obtained a taxi base license and a radio station license. It also obtained a $75,000 bank loan ("the bank loan"), guaranteed by the Plotniks, that it used primarily to purchase new automobiles.

In late 1997, Plotnik was approached by Piscopo. Piscopo advised Plotnik that he, Stranz and Kufeld were interested in obtaining shares of New York Transportation stock in exchange for their promise to arrange the company's entry into the luxury limousine business. Plotnik rejected the offer. Following Plotnik's rebuff, Piscopo told him that he considered the company to be under his "protection," and that Plotnik "owed him" for his "protection services." Compl. ¶¶ 23, 24. Piscopo also informed him that he knew where the Plotniks lived, and warned him that it would be in the best interest of his wife and child to agree to the proposal. Piscopo further threatened to open a car service business to compete with New York Transportation.

In December 1997, Plotnik acceded to Piscopo's demands and transferred seventy-five percent of the shares in New York Transportation to Piscopo, Stranz and Kufeld for no consideration. Piscopo assumed control of the company immediately following this transaction.

Once in control, the individual defendants froze Plotnik out of New York Transportation's operations. Piscopo then commenced a scheme wherein he purchased as many as sixteen used cars on the company's credit. Piscopo arranged for a car dealer to report an inflated price to the lending company. When the loan proceeds had been received, the car dealer would keep an amount equal to the actual price of the vehicle and pay the balance directly to Piscopo while the company assumed responsibility for the full amount of the loan. Piscopo forced Plotnik to execute the paperwork necessary to advance these transactions. Subsequently, defendants transferred title to New York Transportation's vehicles, the company's taxi license and other assets to Naples and Getaway, forging Plotnik's signature as necessary. Defendants also used the proceeds of the bank loan, but ceased making payments to the bank.

In April 1998, Piscopo forcibly removed Plotnik from New York Transportation's offices and told him not to return. Plotnik visited the company's premises on at least two occasions subsequent to April 1998, the latest in January 1999. Each time Piscopo threatened him with bodily injury. Plaintiffs commenced the present action in March 1999.

DISCUSSION

I. Motion to Dismiss for Improper Service under 4(b)

Defendants contend that the complaint must be dismissed pursuant to Fed. R.Civ.P. 4(b) because the summons served with the complaint did not bear the raised seal and original signature of the clerk. Fed.R.Civ.P. 4(b) provides:

Issuance. Upon or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is in proper form, the clerk shall sign, seal, and issue it to the plaintiff for service on the defendant. A summons, or a copy of the summons if addressed to multiple defendants, shall be issued for each defendant to be served.

The language of Rule 4(b) makes clear that when multiple defendants are to be served, a copy of the summons issued by the clerk may be served on each defendant. The Advisory Committee Notes following Rule 4 further explain that "[i]f there are multiple defendants, the plaintiff may secure issuance of a summons for each defendant, or may serve copies of a single original bearing the names of multiple defendants if the addressee of the summons is effectively identified." Defendants in arguing for dismissal in this case appear to be relying on the language of Rule 4 prior to its amendment in 1993. Under pre-amendment Rule 4, service of a copy of a summons was not expressly authorized. However, even under the pre-amendment rule, only when a technical error in the form of a summons "actually result[ed] in defendant's prejudice or demonstrate[d] a flagrant disregard of the requirements of Rule 4[] . . . [wa]s the court likely to rule that a failure to comply precisely with Rule 4[] c[ould] not be cured by amendment." 4A Charles Alan ...


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