The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff PH International Trading Corp., D/B/A Hanna K, commenced this action in New York Supreme Court against Defendant Nordstrom, Inc. by filing a Summons with Notice on July 24, 2006. Plaintiff thereafter served its Summons with Notice on November 2, 2007. Defendant removed the action to this Court on November 29, 2007. Defendant has filed the instant motion to dismiss this action, arguing that Plaintiff failed to timely serve Defendant. Plaintiff has filed a cross-motion asking the Court to deem Plaintiff's service proper nunc pro tunc.*fn1 For the reasons stated below, Defendant's motion to dismiss is denied and Plaintiff's motion is granted.
1. Factual Allegations in Plaintiff's Complaint
The Complaint, which the Court accepts as true at the pleading stage, alleges the facts set forth below.
Plaintiff is a manufacturer and distributor of leather, fur, and shearling outerwear. (Compl. ¶ 1.) Defendant is a retailer of goods, including leather, fur, and shearling outerwear. (Id. ¶ 2.) Between 1996 and 2002, Plaintiff designed and manufactured high quality leather, fur, and shearling outerwear specifically for sale by Defendant. (Id. ¶ 8.)
During the relevant time period, Rick Boniakowski ("Boniakowski") acted as an officer, agent, buyer, and/or employee for Defendant. (Id. ¶ 7.) In that capacity, Boniakowski was authorized to place orders on behalf of Defendant for certain merchandise, including leather and shearling garments. (Id.) In 2002, Boniakowski, on Defendant's behalf, placed an order with Plaintiff for certain merchandise, including leather, fur, and shearling garments, in the same manner that he had in the past placed orders with Plaintiff on behalf of Defendant. (Id. ¶¶ 11-12.) Plaintiff manufactured the garments for Defendant in accordance with Boniakowski's 2002 order. (Id. ¶ 13.) After the merchandise had been manufactured, Defendant canceled Boniakowski's 2002 order. (Id. ¶ 14.) Plaintiff alleges that the cancellation was not due to any fault by Plaintiff and that Defendant acted willfully and without cause, reason, or provocation in canceling the order. (Id. ¶¶ 15-16.) Cancellation of Defendant's order, which was worth $1,750,000.00, allegedly caused Plaintiff damages in excess of $1,750,000.00. (Id. ¶¶ 17-18.)
2. Plaintiff's Factual Allegations about the Commencement of this Action
Plaintiff, in its Memorandum in Opposition to Defendant's Motion to Dismiss and supporting documents, claims that its commencement of this action occurred under the following circumstances.
From the time Defendant canceled its order in 2002 until late 2004, Plaintiff's President, Pierre Lang ("Lang"), attempted to resolve the matter with Defendant. (Aff. of Pierre Lang ("Lang Aff.") ¶ 7.) In late 2004, Plaintiff retained Errol Blank ("E. Blank") as Counsel, and E. Blank thereafter negotiated on Plaintiff's behalf with Defendant. (Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Mem.") 3; Aff. of Matthew Blank ("M. Blank Aff.") ¶ 3.) In August 2005, E. Blank was diagnosed with cancer, and thereafter, Lang attempted to negotiate directly with Defendant's CEO, Blake Nordstrom. (M. Blank Aff. ¶ 4; Lang Aff. ¶ 8.) In July 2006, E. Blank passed away, and his son, Matthew Blank ("M. Blank"), who was also an attorney, agreed that to protect Plaintiff's claim from becoming time-barred he would commence an action against Defendant and then turn the case over to a litigating attorney. (Lang Aff. ¶ 9; M. Blank Aff. ¶¶ 4-7.)
M. Blank commenced this action by filing a Summons with Notice in Westchester County Supreme Court on July 24, 2006. (M. Blank Aff. ¶¶ 6-8.) With Plaintiff's permission, M. Blank then turned the file over to Moneesh K. Bakshi ("Bakshi"), who agreed to serve process and otherwise take the case over from M. Blank. (Lang Aff. ¶ 10; M. Blank Aff. ¶ 8.) A month or so later, Bakshi notified M. Blank and Plaintiff that he had effectuated service of process upon Defendant. (M. Blank Aff. ¶ 8; Lang Aff. ¶ 10.) Over the following months, Bakshi continued to assure Plaintiff that the case was being handled and was moving along in proper fashion. (M. Blank Aff. ¶ 8; Lang Aff. ¶ 11.) At one point, Bakshi even requested from Lang documentation relating to the case, which Lang supplied. (Lang Aff. ¶ 11.)
During the summer of 2007, Bakshi did not return calls from Plaintiff or M. Blank.
(M. Blank Aff. ¶ 9; Lang Aff. ¶ 11.) Concerned about the state of this action, Plaintiff, through M. Blank, contacted its current Counsel, ...