Opinion
02 Civ. 0589 (LAK)
May 9, 2002
ORDER
By letter dated April 29, 2002, plaintiff purports to move for reconsideration of this Court's order, dated April 18, 2002, insofar as that order denied their motion for a default judgment against defendants Napoletano, Saylor and Montgomery Securities, Inc. ("MSI") on the ground that the Court lacked personal jurisdiction over them. They assert that the Court overlooked two points: that (1) service complied with the provisions contained in the order to show cause dated January 25, 2002, and (2) Saylor in any event appeared in the action and failed to answer or move with respect to the complaint.
The motion for reconsideration, having been made by letter, fails to comply with the rules. Nevertheless, the Court on this occasion overlooks that deficiency and considers the matter on the merits.
The first of plaintiff's points is without merit. The service provision of the order to show cause prescribed the method of service of the order to show cause. It did not purport to alter the rules governing the service of process. Absent an order for substituted service under Fed.R.Civ.P. 4(e)(1) and N.Y. CPLR § 308, subd. 5, service had to be made upon the individual defendants as prescribed by Rule 4(e) or by New York law. The order to show cause was not an order for substituted service of process, and it is undisputed that service upon the individuals never was made as required in the absence of an order for substituted service. Nor was MSI properly served with process. Indeed, the Court is unaware of an provision for substituted service of process on a corporation, which always may be served by service on the Secretary of State. See N.Y. Bus. Corp. L. §§ 306(b) (domestic corporations), 307 (foreign corporations).
Plaintiff's second point presents a more substantial issue. Douglas Gross, Esq., appeared on behalf of defendant Leon Saylor in opposition to a motion for interlocutory relief on February 1, 2002. (Tr., 2/1/02) He submitted a declaration and argued in opposition to the motion. While his subsequent application for leave to withdraw was granted by order dated February 21, 2002, the question arises whether his appearance obviated the need for service of process on Saylor.
Federal Rule 12(a)(1) fixes the time within which a defendant is obliged to answer a complaint by reference to the date of service of the summons and complaint. Rule 4(m) purports to require dismissal of an action whenever process is not served on a defendant within the time limit there provided. These rules thus imply that service of process is essential regardless of whether the defendant in question appears by counsel. At least one circuit has so held, albeit only in reference to what now is Rule 4(m). Lewellen v. Morley, 909 F.2d 1073, 1077 (7th Cir. 1990); accord, Marozsan v. United States, 849 F. Supp. 617, 647 (N.D.Ind. 1994). Rule 4(e)(1), however, permits service in accordance with the law of the state in which the district court is located. It long has been established under New York law that the entry of an appearance by counsel is a submission by the defendant on whose behalf it is made to the personal jurisdiction of the court and waives any irregularity in the process or its service, at least where the defendant answers the complaint on the merits without raising any objection. E.g., Meyers v. American Locomotive Co., 201 N.Y. 153, 166 (1911); Clapp v. Graves, 26 N.Y. 418, 421 (1863). This rule has been broadened and codified by N Y CPLR 320(b), which provides (with exceptions not relevant here) that "an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction" is asserted by motion or in an answer.
This case falls within CPLR 320 and the rule of Meyers and Clapp. Mr. Gross, on behalf of Mr. Saylor, took an active role in resisting the motion for a temporary restraining order and a preliminary injunction, submitting papers and arguing in opposition to the application. He never suggested that his client had not been served or that any failure of or defect in service constituted a basis for denying the relief sought. In these circumstances, Mr. Gross' appearance on behalf of Mr. Saylor was the equivalent of, and in any event waived, service of process. This conclusion under state law is effective here by virtue of Rule 4(e)(1).
Accordingly, the motion for reconsideration is granted. On reconsideration, the Court adheres to its prior ruling with respect to defendants Napoletano and MSI but grants the application with respect to defendant Saylor. The Clerk shall enter judgment against Saylor as prayed in the motion, jointly and severally with the defendants as to whom judgment already has been entered.
SO ORDERED.