LANDYA McCAFFERTY, District Judge.
Dennis Villano brings this action against Long Island Pipe Supply, Inc. ("LIPS"), Long Island Pipe Supply of Massachusetts, Inc. ("LIPSMA"), Long Island Pipe Supply of New Hampshire, Inc. ("LIPSNH" and, collectively with LIPS and LIPSMA, the "LIPS companies")
Villano worked for the LIPS companies as their Vice President of Information Technology from July 2012 through the termination of his employment in July 2018. Villano contends that at all times during the tenure of his employment, the three LIPS companies were his joint employers and Robert, Bradley, and Michael were his supervisors and managers.
Villano was 61 years old when he first began working for the LIPS companies and 67 as of the date of his termination. According to Villano, he regularly experienced age discrimination in the LIPS companies' workplace. Specifically, Robert repeatedly told Villano that he was the LIPS companies' oldest employee, mocked him for using dated cultural references, asked him when he planned to retire, and insinuated that he was too old to be driving. On at least one occasion, Robert blamed Villano for a younger employee's mistake. In addition, when the LIPS companies needed to hire a new employee, Bradley asserted that he did not want to hire anyone over 40 years old, and that new hires should be "right out of college." Doc. no. 1 at ¶ 36. When Villano complained regarding those statements, Robert dismissed his concerns and expressed agreement with Bradley's age-biased statements.
In 2018, the LIPS companies hired a younger employee ostensibly to fill a position left open after the termination of another information technology employee, but actually to take over many of Villano's employment responsibilities. Villano viewed the reduction in his responsibilities as a demotion, notwithstanding that he did not experience a reduction in compensation or benefits. Shortly thereafter, according to Villano, the Mosses terminated his employment due to his age.
The LIPS companies, Robert, and Bradley (collectively, the "service defendants") challenge the sufficiency of Villano's efforts to serve them with process in this action. In essence, the service defendants argue that Villano attempted to serve them at incorrect addresses.
Motions to dismiss for insufficient service of process are governed by Federal Rule of Civil Procedure 12(b)(5).
Once the objecting party has properly challenged service of process, the burden shifts to the serving party to prove that service was sufficient.
Before a federal court may exercise jurisdiction over a defendant, that defendant must first be properly served with process under Federal Rule of Civil Procedure 4.
Under Federal Rule of Civil Procedure 4, a plaintiff may serve a corporate defendant within a judicial district of the United States by delivering a copy of the summons and complaint to an officer, to a managing or general agent of the defendant, or to any authorized agent of the defendant for service of process. Fed. R. Civ. P. 4(h)(1)(B). In the alternative, a plaintiff may serve a corporate defendant by following the law governing service of either the state where the district court is located or the state where the defendant is located when service is made. Fed. R. Civ. P. 4(h)(1)(A), 4(e)(1).
Here, Villano attempted service on all the LIPS companies in New York, on LIPSNH additionally in New Hampshire, and on LIPSMA additionally in Massachusetts. Each of those states has different service requirements.
Under New Hampshire law, service on a corporation may be accomplished by serving the corporation's registered agent. RSA 293-A:5.04, 15:10. In the alternative, a plaintiff may serve a corporation by mailing a copy of the summons and complaint by registered or certified mail to the corporate secretary at the corporation's principal office (in the case of a domestic corporation) or to the address of the principal office listed in the corporation's most recent annual report (in the case of a foreign corporation).
Under New York law, there are two alternative methods for serving a corporation. First, the plaintiff may provide a copy of the summons to an officer, director, or managing or general agent of the corporation. NY CPLR § 311(a)(1). Second, the plaintiff may deliver duplicate copies of the summons, together with a statutory fee, to the office of the New York Secretary of State. NY CPLR §§ 306(b)(1), 307(b).
Under Massachusetts law, service on a domestic corporation is accomplished by delivering a copy of the summons and complaint to an officer or a managing or general agent of the corporation at its principal place of business. Mass. R. Civ. Pr. 4(d)(2).
As a matter of federal procedural law, minor formal defects in service may be disregarded so long as the defendant receives actual notice of the complaint and the method of service is in substantial compliance with the requirements of Rule 4.
On July 11, 2019, LIPS amended its articles of incorporation for the sole purpose of changing its name to Miles Moss of New York, Inc. Doc. no. 15-2, exh. 3. Both before and after that amendment, the records of the New York Department of State reflected that LIPS's principal business office and address for service of process were 586 Commercial Avenue, Garden City, NY, 11530.
Villano attempted to serve LIPS on October 28, 2019, by hand-delivering a copy of the summons and complaint to the Garden City address, specifically to a person identified in the service return documents as the "Branch Manager" of the business located at that address. Doc. no. 8, at 3. In addition, also on October 28, 2019, Villano mailed a copy of the summons and complaint to LIPS at the Garden City address through regular mail.
In support of their challenge to the sufficiency of service on LIPS, the service defendants offer the affidavit of Kathy Fields, the former Chief Financial Officer of all three of the LIPS companies. Doc. no. 12-2. Fields states that on July 8, 2019, the Mosses caused the sale of all assets of the LIPS companies to a third party, Core & Main LP ("Core").
Notwithstanding Fields' affidavit, LIPS did not at any material time amend its designations with the New York Department of State. Thus, as a matter of New York law, at the time of service the Garden City address was LIPS's principal business address and address for service of process. NY BCL §§ 304(d), 408(1), 408(7). Even fully crediting Fields' testimony that no person employed at that address was in fact an agent of LIPS for any purpose, Villano's hand-delivery of the summons and complaint to a person identified as a Branch Manager of the business operating at LIPS's principal business address constituted, at minimum, substantial compliance with the requirements of Rule 4(h)(1)(B). Similarly, Villano's having sent copies of the summons and complaint through regular mail to LIPS's designated address for service of process constituted substantial compliance with the requirements of RSA 293-A:15.10. In addition, it is undisputed that LIPS received timely actual notice of this action and actually received copies of the summons and complaint.
On January 4, 2019, LIPSNH filed an annual report with the
New Hampshire Department of State reciting the Garden City, New York address as its principal office address and as the business address of all three Mosses. Doc. no. 15-2, exh. 5. The 2019 annual report recited a Concord, New Hampshire, address for the company's registered agent.
Villano attempted to serve LIPSNH on October 25, 2019, by hand-delivering a copy of the summons and complaint to the Salem address, specifically to a person identified in the service return documents as authorized to accept service on behalf of "Robert Moss." Doc. no. 4 at 2. On October 28, 2019, Villano further attempted to serve LIPSNH by hand-delivering a copy of the summons and complaint to a person employed at the Garden City address. Doc. no. 9 at 1.
In support of their challenge to the sufficiency of service on LIPSNH, the service defendants rely on Fields' statement that following the sale of the LIPS companies' assets to Core, the Garden City address and Salem address ceased to be business locations of LIPSNH, and that thereafter no person working at either of those addresses was an employee or agent of LIPSNH for any purpose, including for purposes of service of process. Doc. no. 12-2 at ¶¶ 4-7. However, Fields' affidavit does nothing to change the fact that LIPSNH did not at any material time file a statement of change with the New Hampshire Secretary of State to name a new registered agent or to register any new address as the corporation's address for service of process. As a result, at the time of service, the Salem address was LIPSNH's registered address for service of process as a matter of New Hampshire law, and Robert was LIPSNH's registered agent. Villano's hand-delivery to a person at the Salem address who identified himself as authorized to accept such service on Robert's behalf was therefore, at minimum, substantially compliant with the requirements of both Rule 4(h)(1)(B) and RSA 293-A:504. Further, Villano's efforts to effect service resulted in LIPSNH's actual knowledge of this action and actual receipt of the summons and complaint. Such substantial compliance is sufficient for purposes of Rule 12(b)(5).
On April 30, 2019, LIPSMA amended its articles of incorporation solely to change its name to Miles Moss of MA, Inc. Doc. no. 15-2, exh. 8. On June 4, 2019, LIPSMA filed an annual report with the Secretary of the Commonwealth of Massachusetts
Villano attempted to serve LIPSMA on October 24, 2019, by hand-delivering a copy of the summons and complaint to the Quincy address, specifically to a person identified both as "Thomas Villano" (apparently the son of the plaintiff in this action) and as a "Branch Manager" of LIPSMA. Doc. no. 3.
In support of their challenge to the sufficiency of service on LIPSMA, the service defendants rely on Fields' statements that following the sale of the LIPS companies' assets to Core, the Quincy address ceased to be a business location of LIPSMA, and that thereafter no person working at that address was an employee or agent LIPSMA for any purpose, including for purposes of service of process. Doc. no. 12-2 at ¶¶ 4-7. However, LIPSMA, like the other LIPS companies, did not at any material time file an annual report or statement of change identifying a new principal office, registered agent, or registered address for service of process. Fields' affidavit therefore does not provide grounds for modifying the conclusion that as a matter of Massachusetts law, at all material times Robert was LIPSMA's registered agent and the Quincy address was LIPSMA's principal office and registered address for service of process. MA ST 156D §§ 1.40, 5.01, 5.02. Villano's hand-delivery of the summons and complaint to a person identified as a managing employee at the Quincy address was therefore substantially compliant with the formal requirements of Rule 4(h)(1)(B), RSA 293-A:15.10, and Mass. R. Civ. Pr. 4(d)(2). Further, because Villano's efforts to effect service resulted in LIPSMA's actual knowledge of this action and actual receipt of the summons and complaint, such substantial compliance is sufficient for purposes of Rule 12(b)(5).
Rule 4 also sets forth the requirements governing service on an individual defendant. A plaintiff may serve an individual by (i) delivering a copy of the summons and complaint to the individual personally; (ii) leaving a copy of the summons and complaint at the individual's usual place of abode with a person residing there of suitable age and discretion; or (iii) delivering a copy of the summons and complaint to an authorized agent for receiving such service. Fed. R. Civ. P. 4(e)(2). In the alternative, a plaintiff may serve an individual by following the law governing service of either the state where the district court is located (here, new Hampshire) or the state where the defendant is located when service is made (here, New York). Fed. R. Civ. P. 4(e)(1).
New Hampshire law provides for service on a nonresident individual defendant through sending the summons and complaint to the defendant's last known abode or place of business through registered mail, then providing proof of such mailing, together with a statutory fee and further copies of the summons and complaint, to the New Hampshire Secretary of State. RSA 510:4(II). Here, there is no suggestion in the record that Villano attempted service through the office of the New Hampshire Secretary of State.
Under New York law, service on an individual may be accomplished using three alternative methods. First, a plaintiff may serve an individual by delivering the summons to the defendant in New York. NY CPLR § 308(1). Second, a plaintiff may serve an individual by delivering the summons to a person in New York of suitable age and discretion at the defendant's actual place of business, dwelling place, or usual place of abode, and by either mailing the summons to the defendant's last known residence or mailing the summons by first class mail in an envelope marked "personal and confidential" (and not otherwise indicating that it contains a summons or pertains to a legal action against the defendant) to the defendant's actual place of business. NY CPLR § 308(2). Third, and finally, service on an individual may be accomplished by delivering the summons to the defendant's designated agent for service of process in New York. NY CPLR § 308(3).
As noted, as a matter of federal procedural law, minor formal defects in service may be disregarded so long as the defendant receives actual notice of the complaint and the method of service is in substantial compliance with the requirements of Rule 4.
Prior to attempting service on Robert and Bradley, Villano's counsel relied on available public documents and on paid online services in an attempt to identify one or more addresses of record for those defendants. Doc. no. 16, at ¶ 2. Counsel's efforts uncovered two residential addresses for Robert—the Woodbury, NY address and a Granby, CT, address—and two residential addresses for Bradley—the Woodbury address and a New York City address.
On October 29, 2019, Villano attempted to serve Robert and Bradley with process by hand-delivering copies of the summons and complaint to a security guard at the gate of the Woodbury address and mailing further copies to that same address.
In support of their challenge to the sufficiency of service on Robert and Bradley, the service defendants offer those defendants' affidavits that neither has resided at the Woodbury address since 2002. Doc. no. 12-3 at ¶ 4; doc. no. 12-4 at ¶ 4. That testimony is sufficient to rebut any presumption that the Woodbury address could have been either Robert's or Bradley's usual place of abode at or around the time Villano attempted service there.
Because Robert and Bradley have not maintained a residence at the Woodbury address for nearly two decades, Villano's efforts were not substantially compliant with the requirements of Rule 4(e)(2) or NY CPLR § 308. The service defendants' Rule 12(b)(5) motion is therefore granted as to Robert and Bradley, and service on them is quashed. Villano shall have thirty days from the date of this order to serve Robert and Bradley with process in this action.
LIPSMA and the Mosses (collectively, the "personal jurisdiction defendants") assert that this court may not properly exercise personal jurisdiction over them in connection with this action because they lack the requisite contacts with New Hampshire. On that basis, the personal jurisdiction defendants move for dismissal of Villano's claims against them.
As to LIPSMA, Villano contends that it is subject to personal jurisdiction here because it (jointly with LIPS and LIPSNH) employed him to perform services in this state. The personal jurisdiction defendants argue that LIPSMA was not at any time Villano's employer, and that Villano's presence in New Hampshire was incidental to LIPSMA's contacts with him.
As to the Mosses, it is Villano's position that they are properly subject to personal jurisdiction in New Hampshire because they each took affirmative steps to supervise his work activities and to dictate the terms and conditions of his employment in this state. The personal jurisdiction defendants argue that Villano's allegations and evidentiary proffer are insufficient to support the conclusion that any of the Mosses purposefully availed themselves of the privilege of conducting any activities in New Hampshire.
"To hear a case, a court must have personal jurisdiction over the parties, that is, the power to require the parties to obey its decrees."
There are several appropriate methods for determining whether a plaintiff has met the burden to establish personal jurisdiction over a defendant, the "most conventional" of which (at the pleading stage of a proceeding) is the prima facie method.
Under the prima facie standard, courts "take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiff's jurisdictional claim."
"Personal jurisdiction implicates the power of a court over a defendant."
Constitutional due process generally requires that the exercise of personal jurisdiction over a defendant "be `consistent with traditional notions of fair play and substantial justice.'"
Two forms of personal jurisdiction can apply to a nonresident defendant: general and specific.
Specific personal jurisdiction allows a court to consider a claim against a defendant so long as the claim "relates sufficiently to, or arises from, a significant subset of contacts between the defendant and the forum."
The parties agree as to all material jurisdictional facts, and disagree only as to the legal conclusions that may properly be drawn from them. Thus, the personal jurisdiction defendants' evidentiary proffer is in all material respects consistent with Villano's jurisdictional allegations. In what follows, the court therefore summarizes Villano's material allegations and the parties' evidentiary proffers together.
LIPS and LIPSNH were at all relevant times affiliated companies under the ownership and control of the Mosses,
Villano offers his affidavit stating that in July 2012, Robert interviewed him in Salem, New Hampshire, for a position as director of the information technology department for all three of the LIPS companies. Doc. no. 15-4 at ¶ 1. The parties are in agreement that after the LIPS companies hired Villano for that position, he maintained an office in LIPSNH's New Hampshire offices and primarily served the LIPS companies from that office.
According to Villano's affidavit testimony, Robert expressly instructed Villano that each of the Mosses would supervise his employment. Doc. no. 15-4 at ¶ 6. In fact, according to Villano, all three Mosses frequently and regularly supervised Villano's work, both in person and telephonically.
According to Villano's affidavit testimony, Robert told him that his employment was terminated on July 16, 2018, while Villano was in New Hampshire. Doc. no. 15-4 at ¶ 12. Villano alleges that all three Mosses contributed to the decision to terminate his employment. Doc. no. 1-2 at ¶¶ 69-72, 89-90. While none of the Mosses regularly conducts business "on [his] own behalf" in New Hampshire, doc. no. 12-3 at ¶ 5, doc. no. 12-4 at ¶ 5, doc. no. 12-5 at ¶ 5, the Mosses do not deny regularly visiting or conducting business in New Hampshire on behalf of one or all of the LIPS companies, including in connection with the terms and conditions of Villano's employment there.
Villano appears to take the position that, because he was (in his view) jointly employed by all three LIPS companies, all of the LIPS companies' contacts with New Hampshire may be imputed to LIPSMA for jurisdictional purposes. The court disagrees. Regardless of whether it may ultimately be established that the LIPS companies were Villano's joint employers, each defendant's forum-related contacts must be evaluated independently.
Villano has nevertheless met his burden to establish a prima facie case that LIPSMA is properly subject to personal jurisdiction in New Hampshire in connection with his claims. Villano's evidentiary proffer, viewed in light of the Rule 12(b)(2) prima facie standard, establishes that LIPSMA (together with the other LIPS companies) hired Villano to perform services for it in New Hampshire and in other locations (including its own facilities in Massachusetts), and compensated him for his services performed primarily in New Hampshire. LIPSMA employees (together with employees of the other LIPS companies) supervised Villano's work, set his work schedule, issued job-related instructions, and dictated his travel requirements.
The first element of the specific personal jurisdiction inquiry, relatedness, requires the plaintiff to show that the claim arises directly out of specific contacts between the defendant and the forum state.
The second element of the inquiry, purposeful availment, requires the plaintiff to show that the defendant "deliberately targeted . . . behavior toward the society or economy of a particular forum such that the forum should have the power to subject the defendant to judgment regarding that behavior."
Villano's purposeful availment showing is sufficient to meet his burden. The record supports the conclusion for prima facie purposes that LIPSMA elected to hire an employee in New Hampshire, compensated that employee for his services performed primarily in New Hampshire, and supervised the terms and conditions of his employment there. In light of these voluntary actions, it was foreseeable that LIPSMA could be haled into court in New Hampshire in connection with claims arising out of the terms and conditions of Villano's employment. This is sufficient to satisfy Villano's burden in connection with purposeful availment.
Because Villano has made a sufficient showing in connection with the relatedness and purposeful availment elements of the inquiry, the burden shifts to LIPSMA to show that it would nevertheless be unreasonable to require it to litigate here. They have not even attempted to meet this burden. The court nevertheless reviews the jurisdictional record to determine whether it supports the conclusion that it would be unreasonable to require LIPSMA to litigate here.
The courts consider five factors, sometimes referred to as the "gestalt factors," in determining whether the defendant has met its burden at the final step of the inquiry.
As to the first gestalt factor—the burden of litigating in New Hampshire—it is of course necessarily burdensome to defend a lawsuit. However, only in the case of a special or unusual burden does this factor weigh against exercise of personal jurisdiction.
The second gestalt factor—the forum state's interest in adjudicating the dispute—also weighs in favor of the exercise of personal jurisdiction. New Hampshire has at least some interest in providing a forum for the redress of injuries to persons employed in New Hampshire. So long as the forum state has at least some degree of interest in adjudicating the dispute, this factor weighs in favor of exercising personal jurisdiction over the foreign defendant.
The third gestalt factor—the plaintiff's interest— virtually always weighs in favor of the exercise of personal jurisdiction over the foreign defendant.
Finally, the fifth gestalt factor—relative policy interests of New Hampshire and Massachusetts—weighs mildly against the exercise of jurisdiction over LIPSMA here. This is because Massachusetts arguably has a greater interest in providing a forum for this litigation than New Hampshire.
Even assigning disproportionate weight to the fifth gestalt factor, taken together the factors do not suggest in any degree that the exercise of jurisdiction over LIPSMA in New Hampshire would be so unfair or unreasonable as to raise constitutional concerns. For these reasons, the personal jurisdiction defendants' motion to dismiss is denied as to LIPSMA.
Villano has likewise met his burden to establish a prima facie case that each of the Mosses is properly subject to personal jurisdiction in New Hampshire in connection with his claims. Villano's evidentiary proffer, viewed in light of the Rule 12(b)(2) prima facie standard, establishes that Robert interviewed Villano in New Hampshire for a position in which he would direct the information technology department for all three of the LIPS companies. Robert instructed Villano that he would perform services for the LIPS companies primarily from New Hampshire. After Villano's hire, all three of the Mosses frequently and regularly supervised Villano's work, both in person and telephonically. All three Mosses also contributed to the decision to terminate Villano's employment, and Robert communicated that decision to Villano by telephone while Villano was in New Hampshire.
As to the relatedness inquiry, Villano's claims arise from the terms and conditions of his employment and from the termination of his employment. Because the record supports the conclusion for prima facie purposes that each of the three Mosses regularly exercised control over the terms and conditions of Villano's employment, Villano has met his burden in connection with relatedness.
As to purposeful availment, Villano has again met his burden. Robert traveled to New Hampshire in order to interview Villano to work for the LIPS companies while primarily based in New Hampshire. After hiring him, Robert exercised control over the terms and conditions of Villano's employment in New Hampshire, contributed to the decision to terminate Villano's employment, and informed Villano of his termination while Villano was in New Hampshire. Bradley and Michael exercised control over the terms and conditions of Villano's employment in New Hampshire and contributed to the decision to terminate Villano's employment in New Hampshire. The Mosses voluntarily took actions to supervise the employment of a New Hampshire employee and decided to terminate that employee. As such, the Mosses availed themselves of the obligations, protections, and benefits of New Hampshire employment law. It was therefore foreseeable that the Mosses might be haled into a New Hampshire court in connection with claims arising out of the terms and conditions of Villano's employment.
The burden therefore shifts to the personal jurisdiction defendants to make a compelling case that it would nevertheless be unreasonable for the Mosses to be required to litigate here. Again, they have made no effort to meet this burden. The court nevertheless reviews the jurisdictional record to determine whether it supports the conclusion that it would be unreasonable, in light of the gestalt factors, to require the Mosses to litigate here.
For the same reasons discussed in connection with LIPSMA, there would be no special or unusual burden if the Mosses were required to litigate in New Hampshire. New Hampshire has at least some interest in adjudicating Villano's claims against the Mosses; Villano has an interest in litigating this dispute in New Hampshire; it is in the interests of judicial efficiency for Villano to pursue his claims in a single forum; and weighing the policy interests of New Hampshire against those of New York is effectively a draw. The five gestalt factors, therefore, do not suggest that the exercise of jurisdiction over any of the three Mosses in New Hampshire would be so unfair or unreasonable as to raise constitutional concerns. For these reasons, the personal jurisdiction defendants' motion to dismiss is denied as to the Mosses.
For the foregoing reasons, defendants' motion to dismiss (doc. no. 12) is granted in part and denied in part as discussed above. Specifically, the motion is granted as to defendants Robert Moss and Bradley Moss for insufficiency of service and is otherwise denied. Service on Robert Moss and Bradley Moss is quashed, and Villano shall have until April 16, 2020, to serve Robert Moss and Bradley Moss with process in this action. Pending such service, the court will retain Villano's action to the extent filed against those defendants.
SO ORDERED.