The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is a diversity action involving claims, under New York State law, for strict products liability, negligence, and breach of warranty. Now before the Court are two motions: 1) A motion [#30] by Saint-Gobain Containers, Inc. ("S-GCI") to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6), or in the alternative, for summary judgment pursuant to FRCP 56; and 2) a motion [#42] by Ahold NV ("ANV") to dismiss the Amended Complaint pursuant to FRCP 4(m), or alternatively, pursuant to FRCP 5(a)&(b), FRCP 12(b) (2),(4), (5) and (6), and FRCP 56. For the reasons that follow, Defendants' applications are denied.
Plaintiff is suing to recover damages for injuries that he allegedly sustained in August, 2003, when a glass bottle of iced tea broke in his hands. On August 22, 2006, Plaintiff commenced this action. Plaintiff alleged that "Saint Gobain Containers" manufactured the bottle that injured him, and that ANV owned the Sugar Creek Convenience Store which sold him the bottle of iced tea. Specifically as to "Saint Gobain Containers," the complaint stated that the company was a New Jersey corporation "located at 184 Buckhorn Drive, W ashington, New Jersey." (Complaint ¶ 3). The complaint further alleged that the defendants were negligent with regard to the design, manufacture, and handling of the product; that the product was in an unreasonably dangerous condition when sold; and that the product was not in a condition fit for its ordinary purpose.
Plaintiff subsequently arranged to have the summons and complaint served on the defendants pursuant to New York Business Corporation Law ("BCL") § 306(b)(1). In attempting to effect service on the manufacturer of the defective bottle, Plaintiff's process server requested the New York Secretary of State to serve "Saint Gobain Incorporated [sued as] Saint Gobain Containers."*fn1 According to the New York Secretary of State's records, "Saint Gobain Incorporated" was a Delaware corporation, which had been granted authority to do business in New York State in 1963, but which, since 1995, was "no longer authorized to do business under the Laws of the State of New York." (Saint-Gobain Motion [#11] Ex. F). Nevertheless, upon receiving the summons and complaint, the New York Secretary of State mailed copies, by certified mail, return receipt requested, to "Saint Gobain Incorporated," at the address which Saint Gobain Incorporated had previously provided to the Secretary of State for such service: "Saint Gobain Incorporated % Euroglass Corporation 405 Park Ave. New York, NY 10022." The mailing, though, was returned to the Secretary of State, by the U.S. Postal Service, as undeliverable. Still, on October 24, 2006, Plaintiff filed an affidavit of service, indicating that "Saint Gobain Incorporated [sued as] Saint Gobain Containers" was served in accordance with Business Corporation Law § 306(b)(1) on October 4, 2006. Plaintiff also made arrangements to have ANV served pursuant to BCL § 306(b)(1), and on October 24, 2006, Plaintiff filed an affidavit indicating that "Ahold U.S.A. Inc. [sued as] Ahold NV" had been served. To reiterate, the entity served was, apparently, "Ahold U.S.A. Inc.," not ANV. Ahold U.S.A., Inc., which is apparently a subsidiary of ANV, is not a named party in this action.
Nevertheless, on October 25, 2006, ANV filed and served an answer to the complaint. The answer included eleven separate affirmative defenses, including statute of limitations and contributory negligence defenses. However, ANV did not include any affirmative defense involving personal jurisdiction or service of the summons and complaint. Subsequently, on March 6, 2007, counsel for ANV participated in a scheduling conference conducted by the Honorable Marian W . Payson, United States Magistrate Judge.
Saint Gobain Containers Inc. did not answer the complaint, however, and on December 7, 2006, Plaintiff applied to this court for entry of default. On December 8, 2006, the Clerk of the Court entered default against Saint Gobain Containers, Inc. Plaintiff did not, however, proceed to seek entry of default judgment.
On July 11, 2007, S-GCI filed a motion [#11] to vacate entry of default, pursuant to FRCP 55(c), and to dismiss the complaint for lack of personal jurisdiction, pursuant to FRCP 12(b)(2). S-GCI's argument, in support of both applications, was, simply, that it was never served with process. Specifically, S-GCI maintained that it was not "Saint Gobain Incorporated," whom the New York Secretary of State allegedly served. S-GCI further averred that its principal place of business was Muncie, Indiana, not Washington, New Jersey. S-GCI additionally indicated that, unlike "Saint Gobain Incorporated," it remained a registered foreign corporation with the State of New York, and that its registered agent, for service of process, was CT Corporation System, 111 8th Avenue, New York, NY 10011. SGCI stated, in fact, that it was "not related" in any way to "Saint Gobain Incorporated."
On October 16, 2007, ANV, which, as already discussed, had answered the complaint almost a year earlier, also filed a motion [#20] to dismiss the complaint, alleging failure to effect service of process as required by FRCP 4(h), lack of personal jurisdiction pursuant to FRCP 12(b)(2), insufficiency of process pursuant to FRCP 12(b)(4), insufficiency of service of process pursuant to FRCP 12(b)(5), and failure to state a claim upon which relief can be granted pursuant to FRCP 12(b)(6). ANV's argument, basically, was that it conducted business only in the Netherlands, and that it did not conduct business as Sugar Creek Stores at the relevant time. ANV claimed, instead, that Sugar Creek Stores were owned by Tops Markets, LLC, which, in 2003, when Plaintiff was injured, was a wholly-owned subsidiary of Tops Holdings, LLC. ANV further maintained that Tops Holdings, LLC, was a subsidiary of Ahold U.S.A. Holding, Inc., later known as Ahold U.S.A., Inc., and that Ahold U.S.A., Inc. was a "legally distinct entity." (Rowell Affidavit ¶ 4).
Plaintiff opposed both motions. W ith regard to S-GCI's motion, Plaintiff contended, first, that "Saint Gobain Containers" had notice of Plaintiff's injury as early as December 2005. On this point, Plaintiff relied on a letter, sent by Broadspire Insurance, to Plaintiff and to "Saint Gobain Containers," in December 2005. (Bullard Affidavit [#15] Exhibit E).*fn2 As indicated on Broadspire's letter, a copy of the correspondence was sent to "Cc: Saint Gobain Containers ATTN: Patrick Beha 184 Buckhorn Drive Washington, NJ 07882." Plaintiff further maintained that it properly relied on this information in suing "Saint Gobain Containers" as the bottle manufacturer. (Bullard Affidavit [#15] ¶ 12) ("W e properly sued Saint Gobain Containers based on the third party liability insurer's representation of its co-defendant." [sic]). Furthermore, Plaintiff claimed that "Saint Gobain Incorporated, a New York Corporation [was], in fact, the same business entity or predecessor of [S-GCI]." (Id. at ¶ 18). Plaintiff purported to base that assertion on information taken off the "saint-gobain.com" website, attached as Exhibit H to Attorney Bullard's affidavit (Document [#15]). That exhibit, however, contained no mention of "Saint Gobain Incorporated."
W ith regard to ANV's motion, Plaintiff contended that ANV had waived any affirmative defenses under FRCP 12(b)(2), (4), and (5), because it failed to make a Rule 12 motion prior to answering the complaint, and failed to include such affirmative defenses in its answer. As further evidence of ANV's alleged waiver, Plaintiff pointed to ANV's participation in the Court's pretrial scheduling conference. Moreover, Plaintiff argued that ANV was a proper party to this action, because it exercised control over Tops Markets and Sugar Creek Stores. At least, Plaintiff maintained, it was entitled to investigate ANV's connection to the Sugar Creek Stores during discovery.
Counsel for the parties appeared before the undersigned on November 8, 2007. Subsequently, on November 20, 2007, the Court issued a Decision and Order [#25], denying ANV's motion and granting S-GCI's motion in part and denying it in part. Specifically as to S-GCI's motion, the Court vacated entry of default as to Saint Gobain Containers, and quashed service on "Saint Gobain Incorporated s/h/a Saint Gobain Containers." In that regard, the Court found that, "[c]learly, the entity upon whom the New York State Secretary of State allegedly made service was not S-GCI. Instead, service was apparently made on 'Saint Gobain Incorporated,' and Plaintiff has not come forward with evidence linking the two entities, let alone establishing that they are one and the same." However, the Court granted Plaintiff an additional twenty days to attempt to serve the party that it had sued as the bottle manufacturer, i.e., "Saint Gobain Containers." The Court noted in that regard, however, that it made "no finding with regard to whether Saint Gobain Containers, identified in the complaint as a New Jersey corporation with its principal place of business in New Jersey, and S-GCI, are one and the same company." As for ANV's motion, the Court found that ANV had waived its affirmative defenses with regard to personal jurisdiction, as well as to the form and manner of service, by failing to raise them, either prior to answering or in the answer to the complaint.
Subsequent to the Court's Decision and Order, on December 5, 2007, Plaintiff filed an Amended Complaint [#27], which amended the caption of the action, to name SaintGobain Containers, Inc., a Delaware corporation, as a defendant, instead of Saint Gobain Containers. Plaintiff electronically filed the Amended Complaint using the Court's Case Management/Electronic Case Filing ("CM/ECF") system, and the pleading was electronically served on S-GCI automatically the same day. However, ANV's counsel was not registered to used the CM/ECF sytem, and Plaintiff indicated that the Amended Complaint had been served "by other means" on ANV's attorney, Dennis P. Hamilton. On this point, the Court's "Administrative Procedures Guide," Section 2, "Electronic Filing and Service of Documents," subparagraph f(ii)&(iii), states, in relevant part:
A certificate of service on all parties entitled to service or notice is still required when a party files a document electronically. The certificate must state the manner in which service or notice was accomplished on each party so entitled. A ...