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.
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.
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. ¶
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
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.
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 ...