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LEWIS & KENNEDY v. PERMANENT MISSION OF REPUBLIC

July 12, 2005.

LEWIS & KENNEDY, INC., Plaintiff,
v.
PERMANENT MISSION OF THE REPUBLIC OF BOTSWANA TO THE UNITED NATIONS and OVE ARUP & PARTNERS CONSULTING ENGINEERS P.C., Defendant.



The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn*] [fn*] Margaret Johnson, a Summer 2005 intern in my Chambers, and currently a second year law student at New York University School of Law, provided substantial assistance in the research and drafting of the Opinion.

OPINION & ORDER

Plaintiff, Lewis & Kennedy, Inc. ("Lewis"), filed this instant Complaint for breach of contract against the Permanent Mission of the Republic of Botswana to the United Nations ("the Mission") and Ove Arup & Partners Consulting Engineers, P.C. ("Ove Arup"). The Mission moves to dismiss (1) on the grounds that Lewis failed to properly effectuate service in accordance with the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608 and (2) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). Ove Arup does not oppose this motion. (Aff. of Alfred Lyons, Principle of Ove Arup). The matter was sub judice following oral argument on July 8, 2005. For the foregoing reasons, the Mission's motion to dismiss for improper service is GRANTED in-part and the motion to dismiss pursuant to Rule 12(b)(6) is DENIED.

I. BACKGROUND

  A. Factual Background

  In February 2003, the Mission hired Lewis, a general contractor, to "perform work and labor and provide materials" for renovations to the home of the Permanent Mission of Botswana, located at 154-156 West 46th Street in New York City, and Ove Arup to serve as its representative for the project. (Compl. ¶ 4.) The agreement between the parties had an estimated base cost of $3,859,088.70. (Compl. ¶ 5.) According to Lewis, during construction, which lasted from March 2003 to April 2004, certain changes were made to the scope of work and recorded in Change Orders, which were approved by the Mission and Ove Arup. (Compl. ¶¶ 8-10.) The Change Orders allegedly increased the cost of the project by $641,985 and the final cost to $4,521,672.66. (Compl. ¶ 10.) To date, Lewis has allegedly been paid $3,744,870.42. (Compl. ¶ 13.) The focus of this dispute is the remaining $776,802.24. (Compl. ¶ 14.)

  B. Procedural History

  1. Attempts at Service in 2004

  On or about December 8, 2004, Lewis filed suit for breach of contract in New York Supreme Court against the Mission and Ove Arup. (Pl.'s Mem. in Opp'n to Mot. to Dismiss, ¶ 3.) Lewis, by and through a process server, Julio De Lara ("Process Server") attempted to serve the Summons and Complaint on the Mission on December 14 and 15, 2004. (Aff. of Serv. by Julio De Lara, Dec. 17, 2004) (herein "Aff. of Service").*fn1 According to a signed affidavit of the Process Server, on both occasions, he was told that "they would not accept service" and to "go away." (Aff. of Service.) According to Lewis, on December 16, 2004, the Complaint was also served on the Mission, yet the method of service is unclear. On the one hand, in Lewis' opposition to the motion to dismiss, Lewis states that the Process Server "affixed the summons and complaint to the door" of the Mission and completed service on December 17 when the Summons and Complaint were mailed via regular mail to Ambassador Alfred Mataye Dube ("Ambassador Dube") (Aff. of Service), and Lewis subsequently filed with the New York State Supreme Court an Affidavit of Service. (Not. of Removal, Robert Van Lierop, Att'y for Def.) On the other hand, the Process Server's affidavit indicates that the papers were delivered by hand directly to "Jane Smith" at the Mission. (Aff. of Service).

  2. Attempts at Service in 2005

  In addition to the attempts to serve the Mission in 2004, on February 14, 2005, Lewis allegedly delivered two copies of the Summons and Complaint to the New York County Clerk's Office with a certified mailing envelope that the Clerk mailed to the Mission. (Pl. Mem. in Opp'n to Def.'s Mot. to Dismiss, ¶ 5) ("the February 14 mailing".) However, Lewis fails to indicate to whom the envelope was addressed. Following the February 14 mailing, Lewis allegedly delivered a second amended Summons, Complaint and Notice of Suit to the County Clerk's Office sometime in March 2005, but again fails to indicate to whom service was addressed. (Pl. Mem. in Opp'n to Def.'s Mot. to Dismiss, ¶ 12) ("the March mailing".) Lewis also maintains that Plaintiff intended to deliver a third copy of the Summons, Complaint, and Notice of Suit to Ambassador Dube sometime in April via certified mail. (Pl. Mem. in Opp'n to Def.'s Mot. to Dismiss, ¶ 14) ("the April mailing".) However, Lewis does not allege that this attempt was conducted through the County Clerk's Office and no proof of service was included in the record.

  On March 4, 2005, the Mission filed a Notice of Removal to this Court under 28 U.S.C. §§ 1330, 1332, 1441, 1446 and Rule 81(c) of the Federal Rules of Civil Procedure (Not. of Removal, Robert Van Lierop, Att'y for Def.), and, on April 11, 2005, the Mission filed the instant motion to dismiss.

  II. IMPROPER SERVICE

  The Mission argues this Court lacks personal jurisdiction. To ascertain whether personal jurisdiction exists, the Court must determine whether (1) the Mission is entitled to immunity under the Foreign Sovereign Immunities Act (herein "FSIA"). 28 U.S.C. § 1608. If the Mission is not immune from the lawsuit, the Court must then decide (2) whether the Mission is a "foreign state" or an "agency or instrumentality of a foreign state" for the purpose of proper service of the Summons and Complaint. Depending on the status of the Mission, the Court must finally determine if Lewis properly effectuated service pursuant to § 1608 of the FSIA. The plaintiff has the burden to demonstrate proper service on the defendant. Hutchinson v. N.Y. State Corr. Officers, No. 02 Civ. 2407, 2003 WL 22056997, at *10 (S.D.N.Y. Sept. 4, 2003); Moultry v. City of Poughkeepsie, 154 F. Supp. 2d 809, 812 (S.D.N.Y. 2001); AIG Managed Mkt. Neutral Fund v. Askin Capital ...


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