United States District Court, S.D. New York
Edward A. Keane, Garth S. Wolfson, MAHONEY & KEANE, LLP, Attorneys for Plaintiff.
Daniel B. Goldman, Carla R. Walworth, Rachel L. Snyder, PAUL HASTINGS LLP, Attorneys for Alvaro Noboa.
LEWIS A. KAPLAN, District Judge.
NYKCool has been struggling for years to collect a judgment previously entered against defendants-in-interest Pacific Fruit Inc. ("Pacific") and Kelso Enterprises Ltd. ("Kelso") - companies owned by defendant Alvaro Fernando Noboa Ponton ("Noboa"). These attempts have been frustrated at every turn. Each time a judgment has been awarded against a new company in Noboa's organization, that company has transferred assets elsewhere, rendering itself judgment proof. After several years of this, NYKCool moved for a default judgment in the amount of $6, 956, 036.17 against Noboa himself. This Court quashed NYKCool's first effort to serve Noboa but authorized service by another means. The matter now is before the Court on Noboa's objections to an order by Magistrate Judge Andrew J. Peck, which denied Noboa's motion to dismiss for insufficiency of the specific service of process authorized by this Court and lack of personal jurisdiction.
Some years ago, NYKCool obtained an arbitration award against Pacific and Kelso in the amount of $8, 787, 157, of which more than $6 million remains unsatisfied. It brought this action in 2012 against a number of corporate defendants including South Pacific Shipping Co. Ltd. ("SOPAC") and three individuals. It seeks to pierce the corporate veil in order to collect the arbitration award from any of the defendants having assets with which to satisfy it.
In a ruling upheld by the Court of Appeals, this Court granted summary judgment in favor of plaintiff and against each of the corporate defendants other than SOPAC, determining that each was an alter ego of the other and therefore liable for payment of the arbitration award.
The action remains pending against the individual defendants and SOPAC.
NYKCool's Unsuccessful Attempt to Serve Noboa, the Order for Service, and the Second Service
In a hearing before Magistrate Judge Peck on October 2, 2012, NYKCool expressed doubt about its ability to serve Noboa, explaining that "[w]e don't really have his address, but we are told that it would be difficult to serve him personally." Neither NYKCool nor defense counsel raised the fact that the complaint alleges that NYKCool's president once negotiated contracts at Noboa's then-residence, which presumably means that he knows or knew the address. In any event, NYKCool requested permission to serve Noboa "via e-mail or the Internet to his personal presidential Web site." Judge Peck invited defense counsel - who represented certain of Noboa's companies - to seek authorization from Noboa to have someone accept service for him. Judge Peck further stated his "inclination... to allow service via Mr. Noboa's Web site, subject to" objections in the event no such authorization could be obtained.
On October 12, 2012, NYKCool sent copies of the summons and complaint by email to email@example.com. An affidavit of service stated that this constituted service on Noboa because this was the email address listed in the "Contact Us" section of the website for Noboa's humanitarian organization, Cruzada Nueva Humanidad, to which the "Contact Us" section of his website, www.alvaronoboa.org, directs correspondence. The director of the Fundación Cruzada Nueva Humanidad wrote to the Court and stated that the Foundation had not received any legal documents and that its website has a disclaimer which states that it "is not authorized to accept communications, message[s] or other information, and any such communications, message[s] or other information provided to the website are not monitored by or forwarded to any person." In the last analysis, this Court granted Noboa's motion to quash that service on the ground that the method selected had not been reasonably calculated to reach Noboa. It went on, however, to invoke Federal Rule of Civil Procedure 4(f)(3) and, "bearing in mind that Noboa has actual knowledge of this lawsuit, " ruled "that the plaintiff may serve the summons and amended complaint on Noboa by serving copies of those papers by e-mail on the attorneys who have appeared here on Noboa's behalf."
On July 17, 2014, NYKCool served Noboa as authorized by the Court's order.
Noboa made his displeasure plain. On July 25, 2014, the following advertisement ...