Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

RCC Ventures, LLC v. Brandtone Holdings Limited

United States District Court, S.D. New York

August 23, 2017

RCC VENTURES, LLC Plaintiff,
v.
BRANDTONE HOLDINGS LIMITED, Defendant.

          OPINION AND ORDER

          GREGORY H. WOODS United States District Judge

         In this lawsuit, Plaintiff RCC Ventures, LLC (“RCC”) seeks to recover amounts allegedly owed it by Defendant Brandtone Holdings Limited (“Brandtone”) under an exclusive debt financing agreement. Although Brandtone is an Irish business corporation with its principal place of business in Dublin, RCC has served process in this action only on Brandtone's wholly owned U.S. subsidiary. Brandtone has not appeared. On July 28, 2017, the Court issued an opinion and order denying RCC's motion for default judgment on the ground that RCC had failed to make a prima facie showing of proper service of process on Brandtone (the “July 28 Order”). ECF No. 24. In the July 28 Order, the Court also ordered RCC to show cause why this action should not be dismissed for failure to effectively serve Brandtone with process in accordance with Federal Rule of Civil Procedure 4(h)(2). Id.

         RCC responded to the order to show cause on August 4, 2017. ECF No. 25. Although certain aspects of RCC's submission suggest that RCC may have misconstrued the July 28 Order as itself dismissing this case (it did not), the Court construes RCC to request that the Court (1) reconsider its denial of default judgment and (2) refrain from dismissing the case for failure to serve. For the reasons that follow, Plaintiff's motion for reconsideration is DENIED, and this action is DISMISSED WITHOUT PREJUDICE.

         I. BACKGROUND

         RCC initiated this action on March 2, 2017 against Brandtone Holdings Limited, an Irish business corporation with a principal place of business in Dublin. Am. Compl. (ECF No. 7) (“AC”) ¶ 3. RCC is a debt advisory company that, among other things, introduces businesses to institutional lenders and arranges for institutional lenders to provide funding to businesses. AC ¶ 5. Brandtone is a mobile marketing firm. AC ¶ 6. RCC seeks damages for amounts allegedly owed it by Brandtone under an exclusive debt financing agreement.

         On March 6, 2017, RCC filed with the Court an affidavit of service of a summons and the amended complaint. ECF No. 10. The affidavit indicates that service of process was made on “Brandtone, Inc. s/h/a Brandtone Holdings Limited” through the New York Secretary of State. Id. In a May 1, 2017 letter to the Court requesting an adjournment of the initial pretrial conference in this matter, RCC described “Brandtone, Inc.” as Brandtone's “wholly owned subsidiary.” ECF No. 12. The Court granted that adjournment request the same day, noting that “the Court takes no position regarding whether service has been properly effectuated in this matter.” ECF No. 13.

         On June 14, 2017, RCC informed the Court of its intention to request a certificate of default and to move for default judgment. ECF No. 14. The Court issued an order the next day, advising RCC that the Court “will carefully scrutinize the issue of service of process prior to granting any default judgment, ” and directing RCC to “the ample case law holding that service of process on a subsidiary does not constitute valid service on the parent merely by virtue of the parent-subsidiary relationship.” ECF No. 15. In addition to that hortatory language, the Court provided several citations to relevant court decisions on the topic.

         Shortly after entry of the Court's June 15, 2017 order, RCC began the process of pursuing a default judgment against Brandtone. Upon RCC's request, the Clerk of Court issued a certificate of default on July 6, 2017. ECF No. 17. The Court then issued an order to show cause why default judgment should not be entered against Brandtone on July 14, 2017. ECF No. 19. In accordance with the Court's Individual Rules of Practice in Civil Cases, RCC supported its motion for default judgment with an attorney's affidavit, a memorandum of law, and other required materials. ECF Nos. 21-22.

         Despite the Court's order explaining that it would carefully scrutinize whether service on Brandtone's wholly owned subsidiary amounted to proper service on Brandtone before granting default judgment, RCC's discussion of service on Brandtone was limited to the following: “On March 23, 2017, Plaintiff served the Summons and Complaint personally on Nancy Dougherty, the authorized agent in the Office of the Secretary of State of the State of New York.” Mem. of Law (ECF No. 21) at 4; see also Decl. of Chris Han (ECF No. 22) ¶ 3 (“A copy of the Summons and Amended Complaint was served on Defendant on March 23, 2017 by personal service made on Nancy Dougherty, the authorized agent in the Office of the Secretary of State of the State of New York.”). RCC presented no argument as to why its method of service was effective as to Brandtone, nor did RCC address the case law specifically cited by the Court in its June 15, 2017 order, or any other law.

         In its July 28 Order, the Court denied RCC's motion for default judgment, concluding that RCC had failed to meet its burden of demonstrating that service was proper. ECF No. 24. The Court also ordered RCC to show cause no later than August 4, 2017 “why this action should not be dismissed for failure to effectuate service in accordance with Federal Rule of Civil Procedure 4(h)(2). Id.

         RCC responded to the Court's July 28 Order on August 4, 2017 (the “August 4 Submission”). ECF No. 25. In that submission, RCC refers to the July 28 Order as the “Dismissal Order” and asks the Court to “reconsider its decision in the Dismissal Order” pursuant to Federal Rule of Civil Procedure 59(e). Mem. of Law in Resp. to Order to Show Cause for Effective Service and in Supp. of Mot. to Reconsider (ECF No. 25-3) (“Pl.'s Mem.”) at 1. Because RCC invokes Rule 59(e), which covers motions to “alter or amend a judgment, ” and refers to the July 28 Order as the “Dismissal Order, ” it appears that RCC may have misconstrued the July 28 Order. In that order, the Court did not dismiss this action, nor has judgment been entered in this case. Indeed, the central point of the July 28 Order was the Court's refusal to enter judgment as requested by RCC. Accordingly, Rule 59(e) is not the appropriate vehicle for the relief that RCC seeks at this time. The Court therefore construes RCC to be requesting that the Court (1) reconsider, pursuant to Rule 60(b) and Local Civil Rule 6.3, that portion of the July 28 Order that denied RCC's motion for default judgment and (2) decline to dismiss the case for failure to effectuate service in the manner required by Rule 4(h)(2).

         II. DISCUSSION

         A. The Motion to Reconsider Is Denied

         Motions for reconsideration are governed by Local Civil Rule 6.3, which provides that the moving party shall set forth “the matters or controlling decisions which counsel believes the Court has overlooked.” “Motions for reconsideration are . . . committed to the sound discretion of the district court.” Immigrant Def. Project v. U.S. Immigration and Customs Enf't, No. 14-cv-6117 (JPO), 2017 WL 2126839, at *1 (S.D.N.Y. May 16, 2017) (citing cases). The standard for granting a motion for reconsideration is strict, however, and such a motion “is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (internal quotation marks and citation omitted); see Ortega v. Mutt, No. 14-cv-9703 (JGK), 2017 WL 1968296, at *1 (S.D.N.Y. May 11, 2017) (“Reconsideration of a previous order by the Court is an extraordinary remedy to be employed sparingly.” (quoting Anwar v. Fairfield Greenwich Ltd., 800 F.Supp.2d 571, 572 (S.D.N.Y. 2011))). As such, reconsideration should be granted only when the moving party “identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Robinson v. Disney Online, 152 F.Supp.3d 176, 185 (S.D.N.Y. 2016) (quoting Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013)) (internal quotation marks omitted). RCC has not satisfied that standard.

         “[A] party is barred from making for the first time in a motion for reconsideration an argument it could readily have raised when the underlying issue was being briefed but chose not to do so.” City of Austin Police Ret. Sys. v. Kinross Gold Corp., 957 F.Supp.2d 277, 315 (S.D.N.Y. 2013) (citation omitted). RCC could have made all of the arguments contained in its August 4 Submission when it moved for default judgment. Apparently recognizing this, RCC now argues that “at no point did the Court request argument on” the issue of service. Pl.'s Mem. at 3. RCC similarly asserts that, “[w]hile the Court previously gave its recitation of the law of parent subsidiary liability, the context and phrasing of the Court's June 15, 2017 Order neither directed nor invited comment, argument or challenge.” Id. at 5. In pressing that argument, RCC quotes some, but not all of, the relevant portion of the June 15, 2017 order. What follows is the portion quoted by RCC in its August 4 Submission:

The Court directs Plaintiff to the ample case law holding that service of process on a subsidiary does not constitute valid service on the parent merely by virtue of the parent-subsidiary relationship. See, e.g., Ehrenzeller v. McLane Foodservice, Inc., Civil Action No. 13-6872, 2014 WL 325640, at *2 (E.D. Pa. Jan. 29, 2014); Gilderhus v. Concentrix Corp., 825 F.Supp.2d 414, 432 n.23 (W.D.N.Y. 2011) (“It is hornbook law that service of process on a subsidiary does not constitute service on a parent corporation, nor does service on a parent constitute service on the subsidiary. Except in exceptional circumstances not present here, the law respects separate corporate identities even where ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.