EFTA00310004.pdf

MAR 1 4 2011I IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS' DIVISION OF ST. THOMAS & ST. JOHN * * * * * ) JEFFREY EPSTEIN, et al., ) ) Plaintiffs, ) ) v. ) NO. ST-10-CV-443 ) FANCELLI PANELING, INC., ) ) Defendant. ) (CARROLL, J.) ) I DEFENDANT'S REPLY TO OPPOSITION TO MOTION TO DISMISS THE COMPLAINT WITH POINTS AND AUTHORITIES COMES NOW Defendant, FANCELLI PANELING, INC. ("Fancelli"), by and through its undersigned counsel, to provide its Reply to Plaintiffs' Opposition to Motion to Dismiss the First Amended Complaint filed herein, pursuant to Super. Ct Rules 7, 27, 128, Fed. R. Civ. P. 4, 12(b), 19, 48 U.S.0 §1561 and the Constitutional considerations embodied therein. In support of its Reply, Defendant states the following facts and circumstances: EFTA00310004 DEE DANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS E' tel t et aL v. Fancelli Panelin nc. Pa 'e DEFENDANT HAS CONTINUING CHALLENGES TO THE JURISDICTIONAL DEFICIENCIES ON THE FACE OF THE FIRST AMENDED COMPLAINT Defendant moves to dismiss, inter alio, pursuant to Fed. It Civ. P. 12(6)(1) & (2). It is respectfully submitted that it is Plaintiffs' obligation to state in the body of their (First Amended) Complaint the statutory basis they choose to designate for jurisdiction in all respects. Pursuant to Fed It Civ. P. 8(a)(1), a pleading that states a claim for relief must contain: (1) A short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support. (Emphasis added). Although Defendant may be able to cull some theory adverse to its interests from juxtaposing selected allegations of fact from portions of Plaintiffs' pleading, the First Amended Complaint does not provide any reference to the statutory underpinnings for the subject matter jurisdiction of the Superior Court, 4 V.I.C.§ 76, nor should it be Defendant's responsibility to select Plaintiffs' best weapon in this regard for any response. Subject matter jurisdiction was not affirmatively plead in the First Amended Complaint. It is unequivocally Plaintiffs' responsibility to state the statutory basis for this Court's subject matter jurisdiction and Defendant can admit, or deny the specifics of same thereafter. Defendant chose to move to dismiss for, inter alia, that reason. Although Defendant may also be able to cull some theory adverse to its interests from juxtaposing selected allegations of fact from portions of Plaintiffs' pleading, the First Amended Complaint does not provide any reference to the statutory underpinnings for this Honorable Court's jurisdiction over this non-resident Defendant and it cannot be as designated for residents EFTA00310005 DEE DANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS rpste , et al. v. Fancelli Paneling. Inc. Page of the Virgin Islands with an enduring relationship. See 5 § 4902. Plaintiffs readily admit the fact that Defendant is not subject to this Court's jurisdiction as a residence within, or by having an enduring relationship with the U.S. Virgin Islands. First Amended Complaint, ¶3, p. I. Nor should it be Defendant's responsibility to select Plaintiffs' best weapon in this regard for any response. It is unequivocally Plaintiffs' responsibility to state the statutory basis for this Court's jurisdiction over this non-resident Defendant and Defendant can thereafter admit, or deny the specifics of same. Personal jurisdiction alleged through some subsection of the long-arm statute, 5 V.I.C. § 4903, over this non-resident Defendant was not affirmatively plead in the First Amended Complaint-it is argued in opposition to the Motion to Dismiss, but it was never plead. Defendant similarly chose to move to dismiss for, inter alio, that reason. Should the Court find jurisdiction in these respects and, given the two forums available through the Superior Court, Defendant would otherwise admit, with a full reservation of rights, that jurisdiction as to venue in St. Thomas & St. John would be preferred over venue in St. Croix. I. THE SUMMONS AND FIRST AMENDED COMPLAINT WERE NOT PROPERLY SERVED UPON FANCELLI PANELING, INC. Defendant moves to dismiss Plaintiffs' First Amended Complaint pursuant to Fed. R. Civ. P. 12(6)(4), insufficient process, and Plaintiffs' Opposition claims to satisfy that contention. Plaintiffs' argument and annexed affidavits from process servers, however, are self- EFTA00310006 DEF D DANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS E to 1 t et at v. Fancelli Panelin' Inc. Pa e defeating and instead serve to show that Fancelli Paneling, Inc., acknowledged by Plaintiffs to be a New York corporation, FAC, para. was not properly served under New York law. Clearly, Plaintiff has confused the sections of New York law setting forth the requirements for service upon a corporation and service upon an individual. According to the affidavit of attempted service submitted by Plaintiffs,their process server attempted set-vice upon Defendant at its offices, 24 East 64i6 Street, New York, New York on August 5 and August 10, 2010, but the process server was told by "an individual" that "they did not have authority to accept service of legal documents." The process server left each time without leaving any documents. According to the affidavit of service submitted by Plaintiff's counsel, Plaintiff's process server then purported to serve Defendant at its offices, 24 East 64th Street, New York, NY on November 29, 2010, by "delivering a true copy of [the Summons and First Amended Complaint] on Christian Barthod, CO-WORKER a person of suitable age and discretion." (emphasis supplied). FAC, Exhibit 1. Plaintiff, in its argument, goes to great lengths to convince this Court that Christian Barthod "acted as the President's agent and liaison." This is irrelevant to the issue of proper service on a corporation under New York law. Plaintiff itself states that it purported to serve defendant under NY law, CPLR 311(a)(1). That statute is quite clear: "Personal service upon a corporation .. . shall be made by delivering the summons as follows: 1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or any other agent EFTA00310007 DEFI3 k1DANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS Este ; d al. v Fanelli Panelin • Inc Pa e authorized by appointment or by law to receive service N.Y. CPLR §311(a)(1). Def. Exhibit A. There is no allegation whatsoever that Christian Barthod is an "officer, director, managing or general agent, or cashier or assistant cashier," or that he was authorized by appointment or law to receive service. There is only a sworn statement by Plaintiff's first process server that he was told that the person he tried to serve was not authorized to accept service. According to Plaintiff's own process server, he served a "co-worker" of Defendant's President. In addition, that "co-worker" had already informed the earlier process server that stated he was not authorized to accept service. The business card procured by the process server discloses no title for Mr. Barthod, which further supports the affidavit describing Mr. Barthod as a "co-worker." The description Plaintiff's counsel sets forth for Mr. Barthod purports to qualify him as a person of suitable age and discretion." Plaintiff, however, has confused the New York statute setting forth the requirements for service upon individual and service upon a corporation. N.Y. CPLR § 308.2 permits personal service upon a "natural person...by delivering the summons within the state to a person of suitable age and discretion at the actual place of business...and... by mailing the summons by first class mail to the person to be served at his or her actual place of business...." The affidavit of service of Plaintiff's process server states that he delivered a copy of the Summons and First Amended complaint to "Christian Barthod, co-worker, a person of suitable age and discretion." Although Defendant does not concede the truth of the statements of the EFTA00310008 DEF DANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS et aL v. •ancelli Panelin • nc. Page process server, even assuming their truth, service was patently insufficient under New York law. As noted in the Affidavit of Mr. Christian Barthod, Def. Exhibit B, he is solely an employee and not otherwise authorized to accept service on behalf of Defendant corporation. II. THIS COURT DOES NOT HAVE PROPER JURISDICTION OVER DEFENDANT Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(6)(2), lack of personal jurisdiction over it. In its Motion to Dismiss, Defendant asserted its insufficient contacts with the Virgin Islands for Plaintiffs to invoke this Court's long-arm jurisdiction over this New York corporation, but also in a manner inconsistent with the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States of America through 48 U.S.C. §1561 (the Revised Organic Act of 1954, as amended). When a defendant raises the defense of lack of personal jurisdiction, "the burden falls upon the plaintiff to come forward with sufficient facts to establish that jurisdiction is proper." Mellon Bank (East) PSFS. Nor. Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992); Carteret Say. Bank. F.A. v. Shushan, 954 F.2d 141,142 n. 1 (3d Cir. 1992). "The resolution of a motion to dismiss for lack of personal jurisdiction is dependent on factual issues outside the pleadings. The plaintiff, as the party asserting personal jurisdiction, has the burden of establishing it." Evans v. General Gases of Y.I., Inc.. 1998 WL 912544 *1, *2 (Terr. Ct. V.I. Nov. 30, 1998). A. LONG-ARM JURISDICTION It must be conceded at the outset that Plaintiffs' failed to reference the V.I. long-arm EFTA00310009 DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS Epstein. et aL v. Fanelli Paneling. Inc. Page 7 statute within its First Amended Complaint. Nevertheless, this statute is lustily utilized in opposing Defendant's Motion to Dismiss on point, to the extend that 5 V.I.C. § 4903(a)(I) & (2) are now Plaintiffs' exclusive reasons for personal jurisdiction. Plaintiffs now support those recent contentions on the following fact pattern: Two New York companies contract in New York for the fabrication of cabinetry in Europe that will be shipped to St. Thomas (by a third party) and installed (by another third party) in a residence to be constructed on Little St. James Island. Defendant comes to Little St. James to see the cabinetry during installation and returns after disputes arise for purposes of settlement. Defendant respectfully submits that it would be unseemly to consider trips into this jurisdiction for the purposes of resolving disputes. Fed R. Evit 407-408. But it is also beyond muster that these activities fail due process protections as well. B. DUE PROCESS If the Court finds satisfaction under the long-arm statute, it must then collapse the question into a single inquiry: does jurisdiction violate the due process clause of the (Organic Act/Constitution)? "The (c)onstitutional due process requirements serve to shield persons from the judgment of a forum with which they have established no substantial ties or relationship." Mottley v. Maxim Crane Works Holding. Inc., 2008 WL 5158090 *J, *2 (D.V.L Dec. 9, 2008)(citing Gen. Elec. Co. v. Deutz AG. 270 F.3d 144, ISO (3d Cir. 2001). Accordingly, the exercise of personal jurisdiction depends on the relationship between the defendant, the forum, and the litigation. Id. The analysis of whether the exercise of personal jurisdiction is permitted by the due EFTA00310010 DEF: DANE'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS ste r et a v. Fancelli Panelin In Pa e process clause depends upon whether the court seeks to exercise general or specific jurisdiction. Id. General jurisdiction occurs when a non-resident defendant's contacts with the forum state are "continuous and substantial." Id. It appears conceded that Plaintiffs herein are not making that allegation. If the Court had general jurisdiction over a defendant, then the defendant may be called into court on any type of action regardless of whether the action arises from the Defendant's contacts with the forum state. Conversely, specific jurisdiction exists when the cause of action "arises from or related to conduct purposely directed at the forum state. Id. Defendant maintains that this Court lacks specific jurisdiction over it as well, because Fancelli does not have sufficient minimum contacts with the Virgin Islands to support the exercise of jurisdiction consistent with due process. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Absent general jurisdiction, the due process clause permits jurisdiction over a non-resident defendant only where that defendant has sufficient "minimum contacts" with the forum state. Purger King Corp. v. Rudzewicz. 471 U.S. 462, 474 (1985). These contacts must be of the nature such that the individual non-resident defendant "should reasonably anticipate being haled into court there." Id. (Emphasis added). It is respectfully submitted that shipping its work to the Virgin Islands through third parties, for installation by third parties, coming to see the work being installed and returning to resolve disputes is an insufficient process to reasonably anticipate being haled into a Virgin Islands court. 1. Plaintiffs Have Not Established Defendant's Minimum Contacts A finding of sufficient minimum contacts requires that "there be some act or acts by virtue of which defendant has purposefully availed himself of the benefits and protections of the EFTA00310011 DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS &stein. et at v. Falwell' Paneling. Inc. Page laws of the forum state." Burger King Corp., 471 U.S. at 474-476. The purposeful availment requirement "ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person." Id. at 475. Defendant's payment for services rendered under its agreement with Molyneux, from Molyneux was the only "benefit" it sought and expected from it. The only source for his protection under that New York contract would have come from a New York court. 2. Fair Play and Substantial Justice Require This Court To Decline of Jurisdiction Even if this Court were to conclude that Defendant had sufficient minimum contacts, it should decline to exercise personal jurisdiction, because the assertion of jurisdiction would not comport with fair play and substantial justice. Urgent v. Technical Assistance Bureau. Inc., 255 F. Supp. 2d 532, 537 (D.V.I. 2003)("It is not enough that TAB has minimum contacts with the Virgin Islands; the exercise of personal jurisdiction must not offend traditional notions of fair play and substantial justice."). The factors that the Court should consider in evaluating whether the assertion of jurisdiction comports with fair play and substantial justice "include: the burden on the defendant, the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of the controversies, and the shared interest of the several States in furthering fundamental substantive social policies." Id. (quoting Pennzoil Products Co. v. Coletti & Assoc.. Inc., 149 F.3d 197, 205-06(3d Cir. 1998)). Defendant submits that its activities in the EFTA00310012 DEF DANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS Eirste s. et al. v. Fancelli Paneling. Inc. Page 0 dispute as outlined by either party herein counsel a ruling for Defendant. The only factor favoring Plaintiffs is one of "convenient" relief. HI. THE FIRST AMENDED COMPLAINT DOES NOT SUFFICIENTLY ESTABLISH A CAUSE OF ACTION FOR BREACH OF A THIRD PARTY BENEFICIARY CONTRACT AND THE NEGLIGENCE ON THE PART OF DEFENDANT IN THIS COURT. In Plaintiffs' First Amended Complaint, they allege the separate contracts between Plaintiff Epstein and Molyneux, then between Molyneux and Defendant Fancelli. FAC, para. 4 & 7. The Plaintiffs, however, attempt to bridge the chasm with a very interest Affidavit from Mr. Molyneux. His Affidavit, authored in New York, signed on December 28, 2010, but the original was not delivered until after the Opposition herein had been filed, contains several statements so inconsistent with the facts as to be charitably regarded as prevarications by Defendant. The Molyneux contract with Defendant stated a very limited scope of work that should not be expanded by a court beyond its own boundaries. The Court is also asked to judicially notice his First Amended Complaint in Molyneux v. Epstein. Dist CL No. 10-cv-34, in which he readily conceded that he and Defendant, an-internationally known woodworking craftsman, satisfied their obligations to Plaintiffs, a fact further acknowledged by Plaintiffs when their agent signed off on the punch list, noting that all of the woodwork on the list was done (paragraphs 14, 18). Def. Exhibit C. That agent signed off on an impressive listing of punch list items, some of which go beyond Defendant's scope of work. Def. Exhibit D. An Exhibit to that Complaint further EFTA00310013 DEFU \MANI'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS Epste' t. et al. v. Fancelli Paneling, Inc. Page 1 noted that Oak was the wood to be used by Defendant in fabricating the cabinets. Defendant maintains that any duty owed to Plaintiffs did not exceed that owed to Molyneux. Molyneux agreed that it had been satisfied and, with the three minor punch items referenced therein, so did Plaintiffs. IV. PLAINTIFFS FAILED TO JOIN AN INDISPENSIBLE PARTY The Affidavit of Molyneux similarly shows how integral he is to all aspects of this dispute; he is the pivot, the fulcrum and the glaring inconsistency to the polarized parties. V. THIS TERRITORY IS AN INCORRECT FORUM FOR THIS ACTION It cannot be gainsaid that the whole of this dispute blossoms from an agreement made in New York between Plaintiff Epstein (wherever he was residing in 2005) and Molyneux (New York), then an agreement between Molyneux and Fancelli (New York). It is respectfully submitted that the law of the State of New York will be operative throughout this litigation on matters sounding in contract and, to a lessor extent, derivative matters of negligence as well. Although this Honorable Court has mechanisms for the application of foreign law, S V.I.C. 4926- 28, we are not stepped in its subtle applications to commercial transactions such as these. It is respectfully submitted that this action should be dismissed or stayed for this reason as well, with leave to the litigants to file with the appropriate New York court. Defendant submits that the individuals and documents evolving from this genesis are similarly in and immediately around New York and the contracting parties' offices in Europe. EFTA00310014 DEF DANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS err et _•.n li 'ar in nc. Pa•e 2 When the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just. 5 V.I.C. 4905. VI. DEFENDANT MAY CLAIM BENEFIT OF RELEASE AT THIS JUNCTURE In addition to dismissal based upon a plaintiff's failure to plead sufficient facts to "plausibly suggest" some cognizable cause of action, dismissal also is appropriate under Rule 12(b)(6) if there is a dispositive legal issue,' or if (either) plaintiff lacks statutory standing to bring suit.2 VII. THE STANDING OF EACH DEFENDANT IS SUBJECT TO INQUIRY In their First Amended Complaint, it is alleged "[i]n 2005, Epstein engaged the architectural and design services of Juan Pablo Molyneux and J.P. Molyneux Studio, Ltd. ("Molyneux") to design a large-scale, multi-structure, multi-million dollar residential project to be constructed on Little St. James Island in St. Thomas, U.S. Virgin Islands. As part of this project, Epstein contracted with Molyneux for the architecture and design of the interior and exterior of a separate building on Little Saint James Island known as the Office Pavilion." FAC„ para. 4, p. 2. They also state that Plaintiff L.S.J., LLC, is the owner of Little St. James Island. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) 2 See Leuthner v. Blue Cross & Blue Shield of Northeastern Pa. 454 17.3d 120 (3d Cir. 2006)(affirming dismissal under Rule 12(b)(6) for lack of statutory standing). EFTA00310015 DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS E.:Ante n. el al. v. Fancelli Paneling. Inc. Page 3 FAC, para. 2, but it does not say when this Plaintiff came into existence in Delaware to own this residence "to be constructed." Given the foregoing and for purposes of Count 1-Breach of Contract, Defendant would ordinarily focus on Plaintiff Epstein. Perhaps and for purposes of Count 11-Negligence within the two count First Amended Complaint, Defendant would ordinarily focus on Plaintiff LSJ. Defendant does not acquiesce to Plaintiffs contentions that both are beneficiaries of Epstein's agreement with Molyneux and submits that it is sufficiently unclear from the face of Plaintiffs' pleading to call it to the attention of the Court. VIII. AFFIRMATIVE DEFENSES ARE PROPER CONSIDERATION FOR DISMISSAL Defendant reiterates the matter referenced in VI, above, but otherwise acknowledges its intention to raise additional affirmative defenses in any Answer it may be required to file and as may be developed through discovery. The reservation of rights was just that. V. CONCLUSION Plaintiffs Amended Complaint against Defendant Fancelli must be dismissed, with prejudice, for all, or any of the foregoing reasons. WHEREFORE, Defendant respectfully requests this Honorable Court to grant the following relief: A. To dismiss the Complaint and each Count within it, with prejudice; EFTA00310016 DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS epste t. el al. v. Fanelli Paneling. Inc. Page l4 B. To award Defendant its costs, including attorney's fees, incurred in the defense of this action; and C. To award such other and further relief as the Court deems just and proper. alb Dated this /1, th day of March, 2011. Respectfully s Treston E V.I. Bar 10 MOORE DODSON & RUSSELL, P.C. Attorneys for Defendant 5035 Noire Gad; P.O. Box 310 St. Thomas, VI 00804-0310 PHONE: FAX: EMAIL: CERTIFICATE OF SERVICE lath I hereby certify that on this day of March, 2011, a copy of the foregoing was served by first class mail, postage prepaid, upon Denise Francois, Esquire, Hodge & Francois, #1340 Taarneberg, St. Thomas, V.I. 00802. EFTA00310017  § 308. CPLR 3.18 3-19 JURISDICTION AND SERVICE § 308. effective unless the front .of the envelope bears the legend "URGENT with the clerk of the court design LEGAL MAIL" in capital letters. The chief executive officer of every days of either such delivery or ated in the summons within twenty such agency shall designate at least one person, in addition to himself service shall be complete ten days mailing, whichever is effected later; or herself, to accept personal service on behalf of the agency. For shall identify such person of suitab after such filing; proof of service purposes of this subdivision the term state agency shall be deemed to le age and discretion and state the date, time and place of service, except refer to any agency, board, bureau, commission, division, tribunal or in matrimonial actions where service hereunder may be made other entity which constitutes the state for purposes of service under pursuant to an order made in accordance with the provisions of subdivision one of this section. subdivision a of section two hundred thirty-two of the domestic relations law; or - 1993 AMENDMENTS 3. by delivering the summons L 1993, ch. 420. eff. Oct. 19, 1993, amended subdivision (2) by replacing within the state to the agent for service of the person to be served the clause that began "In the event any provision of law . . "with the clause as designated under rule 318, "Personal service on a state officer sued solely in an official capacity or state except in matrimonial actions where service hereunder may be made agency, which shall be required to obtain personal jurisdiction over such an pursuant to an order made in accordance with the provisions of officer or agency:" subdivision a of section two hundre d thirty-two of the domestic relations law; 1992 AMENDMENTS L 1992. eh. 44. eff. Jan. 1, 1993, amended subdivision (2) to add a provision 4. where service under paragr aphs one and two cannot be authorizing personal service upon specified state agency officers by certified with due diligence, by affixing the made mail, return receipt requested, in an envelope bearing the legend "URGENT' summons to the door of either the actual place of business, dwelling LEGAL MAIL." within the state of the person to.be place or usual place of abode served and by either mailing the 1985 AMENDMENTS summons to such person at his or her last known residence or by L 1985. ch. 290, eff. Nov. 1, 1985, added subdivision (2). mailing the summons by first class mail to the person to be served at his or htr actual place of busine § 308. Personal service upon a natural person. legend "personal and confidential" and ss in an envelope bearing the Personal service upon a naturak person shall be made by any of the not indicating on the outside thereof, by return address or otherw following methods: . ise, that the communication is from an attorney or concerns an action against the person to be 1. by delivering the summons within the state to the person to be served, such affixing and mailing to be effected within twenty days served; or of each other; proof of such servic e shall be filed with the clerk the court designated in the summ of 2. by delivering the •suinmons within the state to a person of such affixing or mailing, which ons within twenty days of either suitable age and discretion'at the actual place of business, dwelling ever is effected later; service shall complete ten days after such filing, be place or usual place of abodeof the person to be ieryed ant-by either where service hereunder may be except In matrimonial actions mailing the summons to the person to be served-at:his -or. her last accordance with the provisions of made pursuant to an order made in known residence or by mailing the summons by first class-mail to the hundred thirty-two of the dqmestic subdivision a of section two person to be served at his or her actual place. of...business-in an relations law; envelope bearing the legend "personal and:confidential and not • 5. in such manner as the' court, upon motion without rionce indicating on the outside thereof, by return address or offietWise, that directs, if setvice is impracticable , under paragraphs one, two and the communication is from an attorney or concerns an-action against four of this section:. . '• • - • the person to be served, such delivery and mailing to be effected • 6. For purposes of this ''Section, within twenty days of each other, proof of such service shall be filed include any location that•the "actual place of buSiness? shall .• . defendant, throUgh regular solicit • • ation EFTA00310018  § 308. CPLR 3-20 3-21 JURISDICTION AND SERVICE § 309. or advertisement, has held out as its place of business. This amendment was recommended by the Judicial Conference February 1, 1971 Report to the Legislature, wherein it was stated: CROSS REFERENCES "Paragraph 4 would be amended to provide that in order to avail himself of § 2.32, referred to in subds. (2), (3) and (4). above, appears in substituted service by 'nailing and mailing,' a party must make diligent Appendix. below. attempts at prior service under paragraphs I and 2. rather than under 1994 AMENDMENTS paragraphs 1, 2 or 3, as at present . . L. 1994, eh. 131, eff. Jan. 1, 1995, added CPLR 308(6) pertaining to "actual "In addition, minor verbal improvements would be made in paragraph 4. . . place of business." "A similar change is proposed in paragraph 5, to allow the use of a special 1988 AMENDMENTS mode of service according to court order where diligent attempts have failed under paragraphs 1, 2 and 4, rather than under paragraphs 1, 2, 3 or 4, as at L 1988. c.h. 125, elf. Jan. 1, 1989, amended subdivision tto requite delivery present. and mailing to be accomplished within 20 days of each other, and subdivision 4 to require affixing and mailing to be accomplished within 20 'Paragraphs I and 2 would be amended to add the disjunctive word 'or' at the end of each, to clarify that paragraphs 1, 2 or 3 offer alternatives for days of each other; to require proof of service—under both subdivisions—to effecting service and that each of the specified modes can be used as a first be filed within 20 days of whichever service is accomplished later, to make statute gender neutraL preference. "Paragraph 2 would also be made stylistically consistent with paragraph 4 by 1987 AMENDMENTS changing the word 'address' therein to 'residence.' " L 1987, ch. 115, eff. July IS, 1987. amended paragraphs two and four by providing alternative means of satisfying mailing requirement of substituted 1970 AMENDMENTS service and "nailing and mailing" procedures. L. 1970, ch. 852, eff. Sept. 1. 1970, repealed former CPLR 308 and inserted a new section 308. 1986 AMENDMENTS 1968 AMENDMENTS L 1986. ch. 77. eff. Jan. 1, 1987. repealed the undesignated paragraph following paragraph (5) of CPLR 308 relating to the additional notice L 1968, ch. 276, eft Sept. 1, 1968, amended Subd. (3) (now (4)) to require required to take a default judgment in an action against a natural person that proof of substituted service be filed within twenty days after such based upon nonpayment of a contractual obligation. New paragraph (3) of sat CPLR 3215(f) now governs. § 309. Personal service upon an infant, incompetent or 1977 AMENDMENTS conservatee. L. 1977. ch. 344. eff. Jan. I. 1978, amended CPLR 308 by adding a new (a) Upon an infant. Personal service upon an infant shall be made by undesignated paragraph which provides that in an action against a natural personally serving the summons within the state upon a parent or any person for nonpayment of a contactual obligation additional notice must be guardian or any person having legal custody or, if the infant is married. given at least 20 days prior to the entry of a default judgment and which describes the procedures forservice of such notice. upon an adult spouse with whom the Infant resides, or, if none are within the state„upon any other person with whom he resides, or by 1974 AMENDMENTS whom he is employed. If the infant is of the age of fourteen years or 1... 1974, ch. 765, eft'. July 7, 1974, amended paragraphs two, three and four over, the summons shall also be personally served upon him within the of CPLR 308 by.deleting the words "except in matrimonial actions" at the state. beginning of each paragraph and by adding the clause "except io matrimo- nial actions where service hereunder may be made pursuant to an order made (b) Upbn a person judicially declared to be incompetent. Personal in accordance with the provisions of subdivision a of section two hundred service upon a person judicially declared to be incompetent to manage thirty-two of the domestic relations law." his affairs and for whom a cominittee hasbeea appointed shall be made 1971. AMENDMENTS by personally serving thp .itimmons.within the state upon the commit- I.. 1971. ch. 176, eff..Sept. 1. 1971.1arnended CPLR 308.: . tee and upon the- incoinnctem, 'but the court may dispense with service EFTA00310019  § 311. CPLR 3-24 3-25 JURISDICTION AND SERVICE §311. 1999 AMENDMENT, upon motion without notice, directs. L. 1999, ch. 341, eff. July 27, 1999, added section to provide for personal service upon a limited pattoership. . CROSS REFERENCES See B.C.L. §f 304, 306 and 307, in Appendix, below, § 311. Personal service upon a corporation or governmental as to service upon secretary of state or other designated agent of corporation. subdivision. 1999 AMENDMENTS (a) Personal service upon a corporation or governmental subdivision I.. 1999. ch. 341, eff. July 27, 1999, amended by adding shall be made by delivering the summons as follows: the last two