Opinion
02 Civ. 0589 (LAK)
April 18, 2002
ORDER
Plaintiff has moved for a default judgment against defendants Vito Napoletano, Ernie Cappone, Michael Thomas Matejka a/k/a Michael Nixon, Leon Saylor, Sharon Nixon a/k/a Sharon Matejka, Montgomery Sterling, Inc. ("MSI"), Arington Assets Ltd. a/k/a Arington Assets, Inc. a/k/a Arington Assets Corp. a/k/a Bluestone Assets Corp., Arington Clearing Corp. a/k/a Matchbook Clearing Corp. a/k/a Bluestone Depositary Corp., Arington Depository Corp. a/k/a Matchbook Depository Corp. a/k/a Bluestone Depository Corp., Arington Specialist Corp. a/k/a Matchbook Specialist Corp., Arington API Corp. a/k/a Matchbook API Corp., and Arington PI Corp. a/k/a Matchbook PI Corp.
The papers before the Court establish due service upon and defaults by defendants Michael Thomas Matejka a/k/a Michael Nixon, Sharon Nixon a/k/a Sharon Matejka, Arington Assets Ltd. a/k/a Arington Assets, Inc. a/k/a Arington Assets Corp. a/k/a Bluestone Assets Corp., Arington Clearing Corp. a/k/a Matchbook Clearing Corp. a/k/a Bluestone Depositary Corp., Arington Depository Corp. a/k/a Matchbook Depository Corp. a/k/a Bluestone Depository Corp., Arington Specialist Corp. a/k/a Matchbook Specialist Corp., Arington API Corp. a/k/a Matchbook API Corp., and Arington PI Corp. a/k/a Matchbook PI Corp. The motion is more problematic as it relates to the other defendants.
The Court may not properly enter a default judgment against a defendant absent the existence of personal jurisdiction over that defendant. Copelco Capital, Inc. v. General Consul of Bolivia, 940 F. Supp. 93, 94 (S.D.N.Y. 1996). In order to obtain personal jurisdiction over the other individual defendants (Napoletano, Saylor and Cappone), plaintiff was obliged to serve them with the summons and complaint as prescribed by Rule 4(e) of the Federal Rules of Civil Procedure, which is to say either by serving as provided by the law of New York or by Rule 4(e)(2). Under New York law, personal service upon a natural person, insofar as is relevant here, is made either by delivering the summons within the state to the person to be served or by delivering it within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by appropriate mailing. N.Y. CPLR § 308, subd. 1-2. Under Rule 4(e)(2), the summons and complaint, so far as is relevant here, must be delivered personally to the person to be served or left with a person of suitable age and discretion at the individual's dwelling house or usual place of abode.
According to plaintiff's affidavit of service, Saylor purportedly was served by leaving the summons and complaint at the foot of the door to his apartment. Barton Aff. ¶¶ 3-4. Napoletano purportedly was served by leaving the papers "between the screen door and the front door of [his] house." Id. ¶¶ 8-9. As far as Cappone is concerned, the process server went to Cappone's last known address and rang the bell labeled "N. Cappone." A middle aged woman answered the door, said that Cappone was not there, and refused to accept the papers. The process server, at her instruction, then left the papers on the floor "by the interior door of the vestibule to the building," which contained three apartments. Robin Aff., 1/28/02, ¶ 4.
The service on Napoletano and Saylor clearly was insufficient. The papers were not personally delivered to these individuals. They simply were left at the door rather than with a person of suitable age and discretion, as was required under either Rule 4(e)(2) or CPLR § 308, subd. 2.
The service on Cappone is a closer question. Given the description of the woman who answered the door, it appears that the individual was a person of suitable age and discretion. Her response to the inquiry about Cappone, in the context of the name on the bell and the fact that this was Cappone's last known address, suggests that the apartment was Cappone's usual place of abode. Although she refused the papers, that is not conclusive. The papers were left in a particular place pursuant to her direction. In all the circumstances, the Court finds that the woman who answered the door exercised control over the papers by directing the process server to leave them "by the interior door of the vestibule." In consequence, the papers intended for Cappone were delivered to a person of suitable age and discretion at Cappone's actual dwelling place or usual place of abode.
The affidavit of service as to MSI states that Napoletano, an officer, was served as an officer of MSI by the means indicated above. Robin Aff., 3/11/02, ¶ 4. Thus, service on MSI was good if and only if the service on Napoletano was sufficient service upon it. See, e.g., Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 271, 428 N.Y.S.2d 890, 892 (1980). But it was not. As the papers intended for Napoletano were not in fact delivered to him, but left at the door of his residence, it did not comply with that part of Rule 4(h)(1) that establishes a federal standard for service on a corporation within a judicial district, which required delivery to Napoletano, an officer of MSI. And while Rule 4(h)(1) also permits service as prescribed by state law, the purported service on Napoletano did not satisfy the relevant state law provision, CPLR § 311, subd. (a)1, because the summons was not personally delivered to Napoletano. See, e.g., Orbis Marine Enterprises, Inc. v. TEC Marine Lines, Ltd., 692 F. Supp. 280, 287 (S.D.N.Y. 1988).
Accordingly, the motion for a default judgment is granted in all respects as against defendants Michael Thomas Matejka a/k/a Michael Nixon, Sharon Nixon a/k/a Sharon Matejka, Arington Assets Ltd. a/k/a Arington Assets, Inc. a/k/a Arington Assets Corp. a/k/a Bluestone Assets Corp., Arington Clearing Corp. a/k/a Matchbook Clearing Corp. a/k/a Bluestone Depositary Corp., Arington Depository Corp. a/k/a Matchbook Depository Corp. a/k/a Bluestone Depository Corp., Arington Specialist Corp. a/k/a Matchbook Specialist Corp., Arington API Corp. a/k/a Matchbook API Corp., Arington PI Corp. a/k/a Matchbook PI Corp., and Eddie Cappone. It is denied in all other respects, as plaintiff has failed to establish due service on defendants Napoletano, Saylor and MSI.
The Clerk shall enter judgment as prayed in the motion against the defendants with respect to whom the motion has been granted, jointly and severally.
SO ORDERED.