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JIAO v. FIRST INTERNATIONAL TRAVEL

August 4, 2004.

FUJUN JIAO, individually and on behalf of others similarly situated, Plaintiff,
v.
FIRST INTERNATIONAL TRAVEL, INC., SHI YA CHEN, AND "JOHN DOES," Defendants.



The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

MEMORANDUM AND ORDER

INTRODUCTION

In this action, before me on consent pursuant to 28 U.S.C. § 636(c), defendants First International Travel, Inc. ("First International") and its president, Shi Ya Chen ("Chen") (collectively, "Defendants") have moved to dismiss the Complaint. Defendants' motion is made pursuant to Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure, on the grounds that Defendants have not been properly served with process in this action and that the Court therefore does not have personal jurisdiction over them. Defendants also move, in the alternative, to drop First International as a defendant, pursuant to Rule 21 of the Federal Rules of Civil Procedure, on the ground that First International had no connection with the plaintiff, and thus is not a proper party to the action. Plaintiff Fujun Jiao ("Jiao" or "Plaintiff") has opposed the motion to dismiss, arguing that service of process was proper on both First International and Chen; Plaintiff has not, however, opposed Defendants' alternative motion to drop First International as a party.

  For the reasons stated below, the motion to dismiss the action is denied with respect to the individual defendant Chen and granted with respect to the corporate defendant First International. Further, the motion to dismiss the Complaint against First International is granted with prejudice, as it appears that any attempt by Plaintiff to re-serve First International would be futile, given Plaintiff's failure to refute Defendants' sworn statements showing that First International had no involvement in the matters alleged and is thus not a proper party to this action.

  BACKGROUND

  On January 8, 2003, Jiao filed a Complaint against First International, Chen, and an unknown number of "John Does,"*fn1 asserting claims under the Fair Labor Standards Act ("FLSA"), the New York Minimum Wage Act ("NYMWA"), and New York labor law. (See Compl.) On January 9, 2003, Plaintiff's counsel attempted to serve process upon both named defendants. On that date, Brixhilda Salihaj ("Salihaj"), a secretary in counsel's office, went to First International's actual place of business, and left two copies of the Summons and Complaint — one for First International and the other for Chen — with a part-time employee of First International, Mei Jederlinic ("Jederlinic"). (See Affidavit of Personal Service, dated Jan. 10, 2003 ("Aff. of Serv.").) According to First International, Jederlinic worked for the company as a receptionist. (See Affidavit in Support of Motion by Chen, dated June 4, 2003 ("6/4/03 Chen Aff."), ¶ 5.) Then, on January 10, 2003, Salihaj purportedly mailed an additional copy of the Summons and Complaint to Chen at her place of business, in an envelope marked "personal and confidential," with no indication on the envelope that the communication was from an attorney or concerned an action against her. (See Aff. of Serv.) Chen, who was apparently out of the country during the time of the attempted service, and did not return to the United States until April 23, 2003 (see 6/4/03 Chen Aff. ¶ 4 and Exhibit "B" annexed thereto), claims not to have received this mailing (see Affidavit of Shi Ya Chen, dated July 25, 2003 ("7/25/03 Chen Aff."), ¶ 5).

  Defendants filed their Motion to Dismiss the Complaint or to drop First International as a party on June 6, 2003. (Dkt. 10.)

  DISCUSSION

  I. MOTION TO DISMISS AS AGAINST DEFENDANT CHEN

  Where a defendant challenges personal jurisdiction under Rule 12(b)(2), the plaintiff has the burden of establishing jurisdiction. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). In deciding a motion to dismiss for lack of personal jurisdiction, however, the Court has "considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion." Nee v. HHM Fin. Serv., Inc., 661 F. Supp. 1180, 1181 (2d Cir. 1987) (internal quotation marks and citations omitted). Here, the Court can adequately address the motion on the basis of the affidavits and pleadings. In such a case, where a court chooses not to conduct a full-blown hearing on the motion, plaintiff need only make a prima facie showing of jurisdiction through its affidavits and supporting materials. Eventually, of course, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party to defeat the motion.

 Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981); see also Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566-67 (2d Cir. 1996); Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990).

  Where the motion is decided on affidavits and the pleadings, "the court must resolve disputed facts in the light most favorable to plaintiff." Nee, 661 F. Supp. at 1181 (citation omitted). The Court construes jurisdictional allegations liberally and take as true uncontroverted factual allegations. Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 411 (1986); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993). A plaintiff may not, however, establish a prima facie showing of personal jurisdiction merely through conclusory allegations without any supporting facts. See Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998) (rejecting allegations regarding jurisdiction that were nothing more than a "restatement" of the standards laid out in the case law); Cornell v. Assicurazioni Generali S.p.A. Consol., Nos. 97 Civ. 2262 (MBM) & 98 Civ. 9186 (MBM), 2000 WL 284222, at *2 (S.D.N.Y. Mar. 16, 2000) (conclusory allegations "are insufficient to establish even a prima facie showing of personal jurisdiction").

  Federal Rule of Civil Procedure 4(e), which specifies how individuals may be served with process, provides: [S]ervice upon an individual . . . may be effected . . .

 
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the ...

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