United States District Court, S.D. New York
August 4, 2004.
FUJUN JIAO, individually and on behalf of others similarly situated, Plaintiff,
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
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.
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.)
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
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 summons and of the complaint to an
agent authorized by appointment or by law to receive
service of process.
In this case, Defendants correctly point out that the delivery
of the Summons and Complaint to Jederlinic was insufficient to
satisfy the requirements of Rule 4(e)(2), which allows service
upon a person of suitable age and discretion only at an
individual's home, not his or her place of business. The
question, then, is whether, under Rule 4(e)(1), the service
complied with New York Civil Practice Law and Rules Section 308,
the relevant law of the State of New York.
C.P.L.R. Section 308 provides, inter alia, that personal
service upon a natural person may be made:
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 . . . 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. . . .
N.Y.C.P.L.R. 308(2). Under this section, a receptionist employed
by a defendant qualifies as a person "of suitable age and
discretion." Perez v. County of Westchester, 83 F. Supp.2d 435,
441 (S.D.N.Y. 2000); Charnin v. Cogan, 250 A.D.2d 513
673 N.Y.S.2d 134
(1st Dep't 1998); Albilia v. Hillcrest Gen. Hosp., 124 A.D.2d 499
, 508 N.Y.S.2d 10
(1st Dep't 1986). Chen does not dispute that, in this case, a
copy of the Summons was delivered to a receptionist at Chen's
actual place of business.
Chen does contend that she never received a mailed copy of the
Summons addressed to her at her place of business. (7/25/03 Chen
Aff. ¶ 5.) Plaintiff, however, has submitted an affidavit of
service that attests to the mailing of the Summons to Chen's
place of business on January 10, 2003, one day after personal
delivery to the same address. (See Aff. of Serv.) Even if Chen
did not actually receive this mailing, Plaintiff has nonetheless
demonstrated compliance with the provisions of Section 308(2).
Service is valid under this provision as long as the summons is
mailed, even if the defendant never receives the copy sent by
mail. See Perez, 83 F. Supp.2d at 441; Public Adm'r of the
County of New York v. Markowitz, 163 A.D.2d 100, 101,
557 N.Y.S.2d 348, 348 (1st Dep't 1990).
Chen argues that without a postal guarantee, i.e., a
certificate of first class mailing obtained from the Post Office,
there can be no proof that the follow-up mailing step was ever
actually effectuated, and thus Jiao cannot show proper service.
(See Reply, dated July 25, 2003, ¶¶ 10-11.) This argument
fails, as there is no requirement that a postal guarantee be
submitted to the Court as proof of mailing; an affidavit of
service is sufficient. See, e.g., Waite v. Coombe, 247 A.D.2d 663,
664, 668 N.Y.S.2d 767, 769 (3d Dep't 1998) (finding that
service of process pursuant to Section 308(2) was void only
because the record was devoid of an affidavit of mailing).
Jiao has therefore adequately demonstrated that Chen was served
with process under C.P.L.R. Section 308(2), and was thus properly
served under Federal Rule of Civil Procedure 4(e). As Defendants' Motion to Dismiss the Complaint
against Chen is based solely on the supposed inadequacy of
service, the motion to dismiss against Chen is denied.
II. MOTION TO DISMISS AS AGAINST DEFENDANT FIRST
Rule 4(h)(1) of the Federal Rules of Civil Procedure, which
governs service of process upon domestic corporations, provides
that service upon a domestic corporation may be effected pursuant
to the law of the state in which the district court is located,
"or by delivering a copy of the summons and of the complaint to
an officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of
process. . . ." Fed.R.Civ.P. 4(h)(1). Similarly, C.P.L.R.
Section 311 provides that service upon a corporation may be
accomplished 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." N.Y.C.P.L.R. § 311(a)(1). As Plaintiff does not claim
that Jederlinic was an officer, director, cashier, assistant
cashier, or agent specifically authorized or appointed to receive
service on behalf of First International, the question becomes
whether Jederlinic qualified as a managing or general agent under
either New York or Federal law.
The well-established definition of a managing or general agent
is "some person invested by the corporation with general powers
involving the exercise of judgment and discretion, as
distinguished from an ordinary agent . . ., who acts in an
inferior capacity and under the direction and control of a
superior authority, both in regard to the extent of his duty and
the manner of executing it." Taylor v. Granite State Provident
Assn., 136 N.Y. 343, 346, 32 N.E. 992, 993 (1893); see also
Grammenos v. Lemos, 457 F.2d 1067, 1073 (2d Cir. 1972); Colbert
v. International Security Bureau, Inc., 79 A.D.2d 448, 452-53,
437 N.Y.S.2d 360, 363-64 (2d Dep't 1981); Isaf v. Penn. R.R. Co., 32 A.D.2d 578, 579,
299 N.Y.S.2d 231, 233 (3d Dep't 1969).
According to First International, Jederlinic was only employed
by the corporation as a part-time receptionist and salesperson,
was acting in a position of inferior capacity and under the
direction and control of a superior authority, and was not
empowered with supervisory authority. (7/25/03 Chen Aff. ¶ 4.)
Based on this description, Jederlinic would not qualify as a
managing or general agent. See Arce v. Sybron Corp., 82 A.D.2d 308,
312-14, 441 N.Y.S.2d 498, 501-02 (2d Dep't 1981) (finding
that a receptionist employed at company's office was not a
managing agent for the corporation, and thus service made upon
her was not good service upon the corporate defendant);
Colbert, 79 A.D.2d 448, 452-53, 437 N.Y.S.2d 360, 363-64
(same). This would hold true even though Jederlinic may have been
left to run the office in Chen's absence. Colbert, 79 A.D.2d 448,
453, 437 N.Y.S.2d 360, 363 (rejecting the argument that any
corporate employee who has been left to mind an office in the
absence of superior corporate officials can be deemed a managing
agent for the purpose of service of process); Isaf, 32 A.D.2d 578,
579, 299 N.Y.S.2d 231, 233 (same).
Jiao has not refuted First International's showing as to
Jederlinic's status at the company. As Jiao has not shown that
process was delivered to an agent of First International deemed
by law to be an appropriate representative to accept service,
Defendants' motion to dismiss the Complaint against First
International for lack of proper service and personal
jurisdiction is granted. III. FIRST INTERNATIONAL'S ALTERNATIVE MOTION TO BE DROPPED
AS A PARTY DEFENDANT
Ordinarily, defects in service can be readily cured by
re-serving the defendant in accordance with the governing rules.
A dismissal for improper service is, therefore, often granted
without prejudice, to allow the plaintiff an opportunity to
effectuate service. See, e.g., Moultry v. City of Poughkeepsie,
154 F. Supp.2d 809, 813 (S.D.N.Y. 2001) (dismissing claim
without prejudice where plaintiff failed to properly serve
defendants); Fed.R.Civ.P. 4(m) ("If service of the summons and
complaint is not made upon a defendant within 120 days after the
filing of the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the
action without prejudice as to that defendant. . . ."). Here,
however, First International argues in the alternative that,
regardless of the adequacy of service, the company is not a
proper party to this action, and it should therefore be dropped
as a named defendant under Federal Rule of Civil Procedure 21. In
the interest of judicial economy, the Court will consider First
International's alternative argument at this time, so as to
determine whether a further attempt at service of this defendant
would be futile.
Rule 21 provides, in pertinent part, that "[p]arties may be
dropped or added by order of the court on motion of any party
. . . at any stage of the action and on such terms as are just."
Fed.R.Civ.P. 21. "[T]he [C]ourt may rely on Rule 21 to delete
parties that have no connection to the claims asserted."
Glendora v. Malone, 917 F. Supp. 224, 227 n. 3 (S.D.N.Y. 1996).
When evaluating whether a defendant is properly a party to a
lawsuit, courts have looked to affidavits filed by the defendants
challenging the allegations made against them in the complaint.
See, e.g., In re Rezulin Prods. Liability Litig., 133 F. Supp.2d 272,
281 (S.D.N.Y. 2001). Further, where a plaintiff fails to
respond to a defendant's affidavit, wherein the defendant asserts
that he is not a proper party to the action, courts have accepted the defendant's
assertions as true when determining whether joinder was, in fact,
improper. See id. ("Plaintiffs have not responded to the
[defendants'] affidavits in any way. In consequence, the Court
can conclude only that the joinder of these [defendant] sales
representatives lacked any reasonable basis in fact."); see also
Trumps v. Harley of New York Assoc., No. 94 Civ. 7080 (CSH),
1995 WL 65983, at *3 (S.D.N.Y. Nov. 8, 1995) (allegations in
affidavits submitted by defendants in support of removing them as
parties were presumed true for purposes of determining whether
defendants were fraudulently joined, where the plaintiff failed
to offer evidence to controvert assertions).
In this case, First International asserts that it has had no
connection to the alleged labor violations that form the basis of
Jiao's Complaint. According to Chen's sworn affidavit, submitted
on behalf of First International, Jiao was a resident of a
seven-room guest house located on the third floor of 21 East 33rd
Street, New York, New York. (6/4/03 Chen Aff. ¶ 8.) During his
spare time, Jiao did miscellaneous work such as laundry and
cleaning for the guest house, in exchange for free room and
board. (Id.) First International, located on the second floor
of the same address, describes itself as being completely
separate and apart from the third floor guest house. (See id.)
First International states that it has always had its own staff
and business and has never employed Jiao in any capacity. (Id.
¶ 7.) If, as stated by First International, it never employed
Jiao, then Jiao would have no basis to assert claims against the
company with respect to employment matters.*fn2 Although Jiao's counsel has submitted an affidavit in
opposition to Defendants' motion (see Affidavit of Paul W.
Siegert, Esq., dated July 14, 2003), nothing in that affidavit or
elsewhere in Jaio's submissions responds to these assertions made
by First International. The unrefuted statements by First
International, which must be accepted by the Court as true (see
In re Rezulin Prods. Liability Litig., 133 F. Supp.2d at 281;
Trumps, 1995 WL 65983, at *3), demonstrate that First
International is not a proper party to this action, and should
therefore be dropped as a defendant in this lawsuit, regardless
of the adequacy of service.
For all of the foregoing reasons, Defendants' Motion to Dismiss
the Complaint against defendant Shi Ya Chen is denied.
Defendants' Motion to Dismiss the Complaint against defendant
First International is granted, with prejudice, as First
International has sufficiently demonstrated that it is not, in
any event, a proper party to this action.