Opinion
99 Civ. 6098 (RWS)
January 18, 2000
Di RIENZO WALLERSTEIN, (JOSEPH Di RIENZO, ESQ., of Counsel) Attorney for Plaintiff.
JACKSON, LEWIS, SCHNITZLER KRUPMAN (PENNY ANN LIEBERMAN, ESQ. and TERRI L. FREEMAN, ESQ., of Counsel) Attorney for Defendants Access Temporaries, Inc., Steven Weinstein, Michael Weinstein, Marc Paul, Lawrence Paul, Ron Axelrad and Karen P. Druziako
OPINION
Defendants Access Temporaries, Inc. ("Access"), Steven Weinstein a/k/a Steven Weber, Michael Weinstein, Mark Paul, Lawrence Paul, Ronald Axelrod ("Axelrod"), and Karen P. Druziako ("Druziako") (collectively, "Defendants") have moved, pursuant to Fed.R.Civ.P. 12(b), to dismiss the complaint (the "Complaint") of plaintiff Matthew B. DellaFave ("DellaFave"). DellaFave has cross-moved to remand the action to the New Jersey Superior Court. For the reasons set forth below, Defendants' motion is granted in part and denied in part, and DellaFave's cross-motion is denied.
The Parties
DellaFave is a New Jersey resident and former employee of Access.
Access is a New York corporation with its principal place of business at 17 East 45th Street in Manhattan.
Steven Weinstein is a New York resident and an owner and employee of Access.
Michael Weinstein is a New York resident and the brother of Steven Weinstein. He is an owner and employee of Access.
Druziako is a New Jersey resident and employee of Access.
Axelrod is a New York resident and an owner or employee of Access.
Lawrence Paul is an owner, employee, or agent of Access.
Mark Paul is an owner, employee, or agent of Access.
Prior Proceedings
DellaFave filed this action in New Jersey Superior Court, Essex County, on December 31, 1998. Defendants removed the action to the Federal District Court for the District of New Jersey on February 24, 1999, on the basis of federal question jurisdiction, under 42 U.S.C. § 1983, 2000e et seq.
Following removal, Defendants on May 4, 1999 filed the instant motion. On the same day, DellaFave filed a cross-motion to remand the action to the Superior Court of New Jersey. On July 1, 1999, the New Jersey federal district court granted Defendants' first moving point, to transfer venue to the Southern District of New York. The court apparently did not consider any other aspect of Defendants' motion, nor did it consider DellaFave's cross-motion.
Following the venue transfer, Defendants renewed their motion to dismiss. Oral argument on the motion was heard on October 13, 1999. The Court continued to receive correspondence pertaining to the motion through October 27, 1999.
Defendants seek (1) to dismiss all claims against Defendants for lack of personal jurisdiction and insufficient service of process; and (2) to dismiss the Tenth Count of the Complaint and to dismiss all claims against Mark Paul and Lawrence Paul for failure to state a claim.
DellaFave seeks to remand the action to New Jersey Superior Court on the basis of Access' lack of standing to remove.
Background
On a motion to dismiss under Rule 12(b)(6), the facts alleged in the complaint are presumed to be true, and all factual inferences are drawn in the plaintiff's favor. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). The facts presented here are drawn from the allegations of DellaFave's Complaint and do not constitute findings of fact by the Court.
On May 12, 1997, DellaFave was hired by Access to help set up a New Jersey office for Access, after which he would become an employee in that office. Access did business in New Jersey, including advertising, meeting with clients, and solicitation and placement of temporary and permanent employees.
DellaFave's supervisor at Access was Druziako, who in turn was supervised by Axelrod. On or about March 1, 1998, Druziako, in her official capacity as an Access employee, falsely stated that DellaFave was involved in a romantic or sexual relationship with a co-employee. DellaFave complained about Druziako's statements to Axelrod. Axelrod and other defendants failed to adequately investigate his complaint. In addition, the false statements were restated by other Access employees, including Steven Weinstein, Michael Weinstein, and Axelrod, all of whom were acting in their official capacities as Access employees at the time each re-published the statements. The statements damaged DellaFave's reputation and led to his wrongful termination from Access.
Access' contractual relationship with its employees, including DellaFave, included a provision that Access would not permit employees to suffer any retaliation for reporting unwelcome sexual harassment to management.
Discussion
I. The Cross-Motion to Remand Will Be Denied
DellaFave urges remand because Access has no certificate of good standing in New Jersey, which, DellaFave maintains, prohibits Access from initiating any proceeding for affirmative relief, such as removal.
N.J.S.A. 14A:13-11, upon which DellaFave relies, states, in pertinent part, that "[n]o foreign corporation transacting business in this State without a certificate of authority shall maintain any action or proceeding in any court of this State." However, the statute goes on to state that "[t]he failure of a foreign corporation to obtain a certificate of authority to transact business in this State . . . shall not prevent such corporation from defending any action or proceeding in any court of this State." Id.
The clear language of the statute demonstrates the absurdity of DellaFave's position. N.J.S.A. 14A:13-11 serves to prevent foreign corporations without a certificate of authority from commencing a lawsuit, or from bringing an affirmative counter-claim, in a New Jersey state court. A removal petition is quite obviously a procedural defense, not a claim for affirmative relief. DellaFave cites no authority which supports his position, and on-line research reveals that in every case to date in which a New Jersey state or federal court has cited N.J.S.A. 14A:13-11, it has done so where the foreign corporation was the plaintiff in the action, or where the corporation had filed a counterclaim. Therefore, the motion to remand is denied.
II. The Action Will Not Be Dismissed For Lack of Personal Jurisdiction Over Defendants Nor for Insufficient Service of Process
Defendants' contention regarding the Court's lack of personal jurisdiction over them is moot because the case is now in New York. As for service of process, it is uncontested that
Perhaps the federal district court in New Jersey should have decided the personal jurisdiction question before the venue question, and if it lacked personal jurisdiction over the defendants, it would have lacked the power to transfer the case, after which DellaFave would have been free to re-file the action in this Court. It would be a pointless waste of resources, however, to send this action back across the Hudson River and ask the New Jersey federal court to consider the personal jurisdiction question, dismiss the case, and have it re-filed here. (Alternatively, the New Jersey federal court could determine that it had personal jurisdiction over the defendants, in which case the transfer motion would have been appropriate to begin with.)
Defendants were only served via certified mail, which, according to Defendants, is insufficient under New Jersey law. DellaFave contends that under N.J. Ct. R. 4:4-4(c), because Defendants appeared in state court to file the removal petition, service was valid.
The Federal Rules provide that service upon an individual may be effected: "(1) pursuant to the law of the state in which the district court is located . . . or (2) . . . by leaving copies [of the summons and complaint] at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . ." Fed.R.Civ.P. 4(e).
New Jersey law provides that service by mail can be valid as follows:
Optional Mailed Service. In lieu of personal service . . ., service may be made by registered, certified or ordinary mail, provided, however, that such service shall be effective for obtaining in personam jurisdiction only if the defendant answers the complaint or otherwise appears in response thereto. If defendant does not answer or appear within 60 days following mailed service, service shall be made as is otherwise prescribed by this rule, and the time prescribed by R. 4:4-1 for issuance of the summons shall then begin to run anew.
Defendants maintain that appearing for the sole purpose of filing a removal petition does not constitute an appearance in response to the complaint. Somewhat remarkably, it seems as if no New Jersey court to date has construed the meaning of "or otherwise appears in response thereto."
Neither DellaFave nor Defendants cited any cases in their memoranda of law, nor has the Court's independent research turned up any.
In any event, under 28 U.S.C. § 1448:
In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.
Defendants have presented no evidence that they have in any way been prejudiced by DellaFave's failure to effect personal service. In a recent opinion of this Court where defendants maintained that service was improper, the Court ordered the plaintiffs to serve the defendants within thirty days from the date of the opinion by personally serving a copy of the summons and complaint on their counsel, and that such action would constitute perfected service. See Boggs v. Die Fliedermaus, Nos. 99 Civ. 1732 99 Civ. 2451 (RWS), 1999 WL 1204548, at *13-*14 (S.D.N.Y. Dec. 13, 1999). The same procedure is merited here, to avoid excessive and needless formalities. DellaFave is thus ordered to serve Defendants' counsel with one copy of the Summons and Complaint in this action within thirty (30) days. Pursuant to this Court's power under Rule 4(m), Fed.R.Civ.P., such action will be deemed to perfect service.
III. The Tenth Cause of Action Will Be Dismissed and Mark and Lawrence Paul Will Be Dismissed As Defendants
The Tenth Cause of Action in DellaFave's Complaint states a claim for "joint and several liability." Joint and several liability is a rule of contribution, not a cause of action. This claim will be dismissed. In addition, because the Complaint does not allege any substantive cause of action against defendants Mark Paul and Lawrence Paul, the action will be dismissed as to those defendants, without prejudice to DellaFave to replead.
Conclusion
DellaFave is ordered to re-serve a copy of the Summons and Complaint on Defendants' counsel within thirty (30) days from the date of this opinion. The Tenth Cause of Action is dismissed.
The action is dismissed as to defendants Mark Paul and Lawrence Paul.
It is so ordered.