Beyond Bespoke Tailors, Inc. v. Barchiesi
1:20-cv-05482
S.D.N.Y.Mar 21, 2023Background
- Plaintiffs Beyond Bespoke Tailors and founder Nick Torres sued James Barchiesi and several corporate entities for fraud, breach of fiduciary duty, and breach of contract; the case was removed to federal court.
- Corporate defendants’ counsel withdrew; the corporate entities did not appear through new counsel (corporations cannot proceed pro se), and the court entered default judgment against them as to liability.
- Barchiesi filed a third-party complaint against accountant Linda Roth (doing business as Roth CPA, Roth Associates, and Roth Certified Public Accountants) alleging breach of contract and indemnification.
- Roth moved to dismiss under Rules 12(b)(5) and 12(b)(6), arguing improper service (and, alternatively, improper venue and that Barchiesi was not a party to the agreement). Barchiesi, initially pro se, then sought leave to amend to drop breach of contract and add contribution.
- The court found Roth had actual notice, Barchiesi’s pro se status justified leniency on service, and that dismissal for defective service was not warranted; the court denied Roth’s motion without prejudice and granted leave to amend and re-serve within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal is required for insufficient service under Rule 12(b)(5)/Rule 4(m) | Barchiesi sought leave to amend and to effect proper service; he emphasized his pro se status at the time of initial service attempts | Roth argued service was improper (served to her firm and then by mail) and sought dismissal | Court exercised discretion to allow amendment and additional time to effect service; denied dismissal without prejudice because Roth had notice and prejudice was low |
| Whether the court should allow amendment of the third-party complaint (Rule 15) | Barchiesi argued amendment is proper and sought to add contribution and drop breach of contract | Roth opposed, arguing futility and other defenses (venue, lack of privity) | Court granted leave to amend; found no bad faith or undue prejudice and noted plaintiff’s pro se status justified leniency |
| Whether to resolve Roth’s alternative merits arguments (venue, privity, futility) at dismissal stage | Barchiesi did not contest here; focused on curing service and amendment | Roth urged dismissal on merits grounds if service deemed proper | Court declined to address merits given unresolved service; denied merits-based dismissal without prejudice |
Key Cases Cited
- Rowland v. California Men's Colony, 506 U.S. 194 (1993) (corporations may not appear pro se)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (establishes plausibility standard for pleading)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (applies plausibility standard to dismissals)
- Zapata v. City of New York, 502 F.3d 192 (2d Cir. 2007) (district court has discretion under Rule 4(m) to extend service time even absent good cause)
- DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54 (S.D.N.Y. 2010) (guidance on Rule 12(b)(5) analysis and Rule 4 service requirements)
- Romandette v. Weetabix Co., 807 F.2d 309 (2d Cir. 1986) (Rule 4 construed liberally where defendant has actual notice)
- Foman v. Davis, 371 U.S. 178 (1962) (leave to amend should be freely given absent certain factors)
- Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008) (factors for denying leave to amend include undue delay, bad faith, repeated failure to cure, undue prejudice, and futility)