The opinion of the court was delivered by: The Honorable Richard J. Sullivan, U.S.D.J.
REPORT AND RECOMMENDATION
Charles E. Gore brings this employment discrimination action against The RBA Group, Inc. ("RBA") and Haider Engineering asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq; 42 U.S.C. § 1981; the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq; and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. Haider Engineering now moves pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the claims asserted against it in the Second Amended Complaint on the grounds that service was never properly effected and that the claims are now time barred. In response, Mr. Gore asserts that service of the Second Amended Complaint was properly made; in the alternative, he argues that Haider Engineering waived its opportunity to contest service as a result of its participation in these proceedings. For the reasons that follow, I recommend that the motion to dismiss be denied and that the plaintiff's time to effect service on Haider Engineering be extended for thirty (30) days.
The facts underlying this action are set forth in detail in my Report and Recommendation dated August 29, 2005, and will be summarized here only to the extent necessary to address the instant motion. Haider Engineering is a domestic corporation registered in the State of New York; its business involves construction contracting in and around the New York metropolitan area. (Entity Information for Haider Engineering, P.C. ("Entity Information"), attached as Exh. H to Declaration of Lalit K. Loomba dated June 11, 2008 ("Loomba Decl."); Second Amended Complaint ("2nd Am. Compl."), ¶ 4). The CEO of Haider Engineering is Syed Haider ("Mr. Haider"). (Entity Information).
Mr. Gore, a black man, was an employee of Haider Engineering from May 2001 until March 2003. (Defendants' Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 ("Def. Rule 56.1 Statement"), ¶¶ 21-22; Plaintiff's Rule 56.1 Statement of Disputed Material Facts, ¶ 1). During this period, Mr. Gore worked as an inspector for an intersection restoration project on Long Island known as the Route 231 Project. (Deposition of Julius Giarraputo ("Giarraputo Dep."), excerpts attached as Exh. G to Certification of Joseph B. Fiorenzo dated April 27, 2005 ("Fiorenzo Cert.") and as Exh. 4 to Affirmation of Christopher P. Edelson dated June 2, 2005 ("Edelson Aff."), at 11-12; Deposition of Syed Haider ("Haider Dep."), excerpts attached as Exh. D to Fiorenzo Cert., at 18-22; Affidavit of Charles Gore dated May 31, 2005, attached as Exh. 1 to Edelson Aff., at 1).
While working on the Route 231 project, Mr. Gore was supervised by Julius "Jack" Giarraputo, an RBA employee. (Giarraputo Dep. at 12-16; Deposition of Charles Gore dated Feb. 15, 2005 ("Gore Dep. II"), excerpts attached as Exh. J to Fiorenzo Cert. and as Exh. 3 to Edelson Aff.). The plaintiff has alleged that Mr. Giarraputo made racially disparaging remarks toward him on a weekly basis, calling him a "nigger," a "monkey," a "fat dumb black ass," and "a piece of shit;" saying that he "smelled like Harlem;" and challenging his ability to do his job. (Deposition of Charles Gore dated Jan. 25, 2005 ("Gore Dep. I"), excerpts attached as Exh. H to Fiorenzo Cert. and as Exh. 2 to Edelson Aff., at 184-87; Gore Dep. II at 20-22, 281-82, 293). As a result of Mr. Giarraputo's remarks, Mr. Gore alleges that he experienced humiliation, loss of self esteem, physical illness, and depression. (Gore Dep. II at 24-26, 282-83).
On June 6, 2002, Mr. Gore filed a charge of discrimination with the United States Equal Employment Opportunity Commission (the "EEOC") against RBA regarding Mr. Giarraputo's conduct. (EEOC Charge of Discrimination dated June 6, 2002, attached as Exh. AA to Fiorenzo Cert.; Gore Dep. I at 290-92). In August 2003, the EEOC informed Mr. Gore that it had not found sufficient evidence to continue its investigation and issued him a Right to Sue Letter. (Letter of EEOC dated Aug. 26, 2003, attached as Exh. EE to Fiorenzo Cert.; Def. Rule 56.1 Statement, ¶ 52).
The plaintiff filed his first complaint against RBA with this Court on November 20, 2003. (2nd Am. Compl., ¶ 13). On July 6, 2004, he filed a Second Amended Complaint naming both RBA and Haider Engineering as defendants. (2nd Am. Compl., ¶¶ 3-4). RBA filed an answer to the Second Amended Complaint on October 12, 2004; Haider Engineering, however, did not file an answer or any other document with this Court until April 24, 2008. (Civil Docket Sheet, attached as Exh. B to Loomba Decl., at 4; Answer of Haider Engineering, attached at Exh. E to Loomba Decl.).
The plaintiff asserts that the Second Amended Complaint was personally served on Haider Engineering. (Letter from David M. Fish dated May 15, 2008, attached as Exh. F to Loomba Decl., at 1). In support of this contention, the plaintiff has produced three unsigned letters from Christopher P. Edelson, Mr. Gore's prior counsel, addressed to Haider Engineering, stating that Mr. Edelson had sent Haider Engineering two copies of the Second Amended Complaint and recommending to Mr. Haider that he obtain legal representation. (Letters from Christopher P. Edelson dated July 27, 2004, Nov. 11, 2004, and Oct. 27, 2005, attached as Exh. F to Loomba Decl.). In addition, at an evidentiary hearing conducted in connection with the instant motion, Mr. Edelson testified that he had multiple telephone conversations in 2004 and 2005 with Mr. Haider discussing the Second Amended Complaint and its implications. (Tr. at 8).*fn1 According to Mr. Edelson, Mr. Haider admitted during those conversations that he had received the Second Amended Complaint. (Tr. at 8).
The plaintiff has also produced an unsigned affidavit of service dated June 16, 2008 from Professional Process Servers. It attests that the Second Amended Complaint was served by a Donald J. Klune on an authorized agent of Haider Engineering named "Ana Moatos" on December 15, 2004. (Affidavit of Service dated June 16, 2008, attached at Exh. A to Affidavit of David M. Fish dated June 19, 2008). At the evidentiary hearing, Mr. Edelson testified that he had made efforts to locate Mr. Klune, but that Mr. Klune had left Professional Process Servers and could not be found. (Tr. at 14-16). Mr. Haider acknowledges that he once employed a secretary named Anna Matos, but he denies that she was a person authorized to receive process or that he ever received the Second Amended Complaint from her. (Tr. at 17, 19, 21).
Despite the absence of an answer from Haider Engineering, Mr. Gore and RBA proceeded with the case; they exchanged interrogatories and conducted depositions throughout the fall of 2004 and the winter of 2005. (Plaintiff's Response to Defendant The RBA Group's First Set of Interrogatories dated Sept. 19, 2004, attached as Exh. JJ to Fiorenzo Cert.; Deposition of Thomas Fastert, excerpts attached as Exh. C to Fiorenzo Cert., at 1; Deposition of Anthony N. Mavis, excerpts attached as Exh. E to Fiorenzo Cert. and as Exh. 5 to Edelson Aff., at 1; Deposition of Lori Cole Sohn, excerpts attached as Exh. F to Fiorenzo Cert. and as Exh. 6 to Edelson Aff., at 1; Giarraputo Dep. at 1; Gore Dep. I at 1; Gore Dep. II at 1). On February 16, 2005, the plaintiff took the deposition of Mr. Haider. (Haider Dep. at 1).
Haider Engineering engaged counsel and filed an answer to the Second Amended Complaint on April 24, 2008. In its answer, Haider Engineering asserted a defense of insufficiency of service of process. On June 12, 2008, it brought the instant motion to dismiss.
A. Proper Service Pursuant ...