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Linium, LLC v. Bernhoit

United States District Court, N.D. New York

June 15, 2017

LINIUM, LLC, Plaintiff,


          Lawrence E. Kahn, U.S. District Judge


         This case, in which Linium, LLC is suing its former employee-Sean Bernhoit-over his alleged breach of a non-compete agreement, was originally filed in New York state court on November 2, 2016. Dkt. No. 1-1 (“Complaint). On February 22, 2017, Bernhoit removed the action to federal court. Dkt. No. 1 (“Notice of Removal”).

         Currently before the Court is Linium's motion to remand the case back to state court. Dkt. No. 10 (“Motion to Remand”); see also Dkt. Nos. 10-7 (“Memorandum”), 13 (“Opposition”), 14-3 (“Reply”). According to Linium, Bernhoit failed to remove the case within the statutory thirty-day deadline, a question that turns on whether Bernhoit was properly served last November. But the parties also failed to raise an issue of subject matter jurisdiction concerning Linium's citizenship. For the following reasons, Bernhoit is directed to amend his Notice of Removal to resolve the jurisdictional issue, and this motion is referred to Magistrate Judge Christian F. Hummel for further proceedings.


         According to the Complaint, Linium-an information-technology consulting firm-hired Bernhoit as a Senior Vice President in October 2008. Compl. ¶¶ 4, 13. As a condition of his employment, Bernhoit was required to sign a non-compete agreement that barred him from soliciting Linium's clients and employees and from working for its competitors. Id. ¶¶ 18-19. In December 2015, Bernhoit left Linium and joined Peloton Inc., a “direct competitor of Linium.” Id. ¶¶ 31-32. Bernhoit then recruited or attempted to recruit several Linium clients and employees, encouraging them to jump ship and join him at Peloton. Id. ¶¶ 33-37.

         On November 2, 2016, Linium sued Bernhoit in the New York Supreme Court for Albany County, alleging breach of the non-compete agreement. Compl.; Dkt. No. 10-1 (“First Hillmann Declaration”) ¶¶ 3-4. Because Bernhoit lived in California, Linium hired a California-based process server to serve Bernhoit at his home. First Hillmann Decl. ¶¶ 5-6.

         The process server-Harry Kazakian-claims to have personally served Bernhoit at his home in Calabasas, California, on November 5, 2016, at 5:22 PM. Dkt. No. 10-3 (“First Kazakian Affidavit”). In a later affidavit, Kazakian provided more detail about the encounter. Dkt. No. 10-5 (“Second Kazakian Affidavit”). According to Kazakian, he arrived at Bernhoit's house, knocked on the front door, and announced himself. Id. ¶ 9-10. “The individual inside identified himself as Mr. Bernhoit behind the closed door, but would not open the door.” Id. ¶ 10. Bernhoit remained behind the door, shouting at Kazakian to get off his property. Id. ¶ 11. Kazakian “responded by announcing service loudly, ” and then placed the documents “on the door jam of the front door.” Id. ¶ 11. In this second affidavit, Kazakian listed Bernhoit's address as being in Burbank, California, as opposed to Calabasas. Id. ¶ 8. But in yet another affidavit, Kazakian claims this was a “scrivener's error, ” and that he indeed served Bernhoit at his home in Calabasas (as Kazakian said in the original service affidavit). Dkt. No. 14 (“Third Kazakian Affidavit”) ¶¶ 3-8; see also Dkt. No. 14-1 (“Second Hillmann Declaration”) ¶¶ 3-7 (claiming responsibility for the “scrivener's error” and confirming the version of events in Kazakian's affidavit).

         Bernhoit tells a different story. According to Bernhoit, he left his home in Calabasas at around 9:00 AM and did not return until at least 11:00 PM. Dkt. No. 13-1 (“Bernhoit Affidavit”) ¶¶ 5, 9. Bernhoit catalogues his movements throughout the day, including appearances at his daughter's water polo match, a movie theater with his son, and ultimately his grandmother's birthday party. Id. ¶¶ 6-8. Along with his sworn statements, Bernhoit includes various photographs and screenshots that purportedly confirm his account, the most relevant of which is a photograph with his grandmother time-stamped at 5:59 PM. Dkt. No. 13-4.[1] Bernhoit denies that he was ever served by Kazakian. Bernhoit Aff. ¶ 11. He also includes an affidavit from his girlfriend, Tiffani Brooks, who confirms that Bernhoit left the house at around 9:00 AM, that he was at the restaurant for his grandmother's party at around 5:30 PM, that she never saw a process server or any other delivery at the house that day, and that no one was home at 5:22 PM. Dkt. No. 13-5 (“Brooks Affidavit”) ¶¶ 5-9.

         Despite his claim that he was never served, Bernhoit must have been made aware of the lawsuit through some other means, since in mid-November, attorneys from the law firm of Nixon Peabody contacted Linium's counsel, claiming to represent Bernhoit in this case. First Hillmann Decl. ¶ 10. Because Bernhoit had not yet filed a responsive pleading, on December 13, 2016, Linium mailed him another copy of the summons and Complaint, a requirement for default judgment under New York law. Id. ¶ 11. Nixon Peabody then again contacted Linium's counsel, asking for an extension of time to answer the Complaint-a request that Linium granted. Id. ¶ 12. In a December 22 conversation regarding a potential settlement, a Nixon Peabody attorney claimed that the attempted service on Bernhoit was improper. Id. ¶¶ 13-14. After (and perhaps in exchange for) additional extension requests, Nixon Peabody offered to accept process on behalf of Bernhoit and thus resolve the alleged service issue. Id. ¶¶ 15-17. Linium again agreed to the extension request, id. ¶ 17, and, according to Bernhoit, his counsel accepted service on January 24, 2017, Opp'n at 1.

         Instead of responding to the Complaint, Bernhoit-now through a different law firm called Girvin & Ferlazzo-filed his Notice of Removal on February 22, 2017. Notice of Removal. In the notice, Bernhoit claims federal jurisdiction based on diversity of the parties' citizenships. Id. ¶ 6. In support of this claim, Bernhoit alleges that he is a citizen of California while Linium is a limited liability company both organized in and with its principal place of business in New York. Id. ¶¶ 7-8.

         Linium responded by filing its Motion to Remand, arguing that Bernhoit missed the thirty-day deadline for removal. Mem. at 5; see also 28 U.S.C. § 1446(b)(1) (requiring notices of removal to be filed within thirty days after the defendant is served). Because he was served on November 5, 2016, and received another copy of the Complaint by mail in December, the February 22 notice was untimely. Mem. at 5. Bernhoit responds by arguing that he wasn't properly served on November 5, and thus the thirty-day deadline should be measured from January 24, 2017, when his counsel claims to have accepted service on his behalf. Opp'n at 1.


         A. Subject ...

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