1:21-cv-03884
S.D.N.Y.Oct 5, 2023Background
- Vargas sued Alphonso’s Pizzeria (now LES Pizza) and owner Alphonse DiPilato under the FLSA and NYLL.
- Vargas initially filed an affidavit of service stating process was left with a co-worker identified as “Juan ‘Smith’” at the restaurant and mailed to that address; Vargas later sought alternate service by email.
- The Court previously found DiPilato was not properly served under Fed. R. Civ. P. 4(e)(1), denied DiPilato’s dismissal motion, and directed Vargas to re-serve him; the Court observed DiPilato had actual notice of the suit.
- Vargas renewed a request to serve by email, submitting an affidavit saying service at known New York addresses was impracticable and that an Arizona address surfaced in internet searches but had not yet been used for service.
- The affidavit showed counsel attempted to contact DiPilato by email for an address but received no cooperation; counsel planned but had not attempted service at the Arizona address.
- The Court denied the renewed request for alternate service because Vargas had not shown it was impracticable to effect service under CPLR 308(1) or (4) (including attempting service in Arizona).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vargas may serve DiPilato by email under CPLR 308(5) without first showing service under CPLR 308(1) or (4) is impracticable | Email service is necessary because known NY addresses are impracticable and DiPilato’s whereabouts are unknown | Vargas has not shown impracticability; an Arizona address was located and not yet tried | Denied — plaintiff must first show impracticability of CPLR 308(1)/(4) before court may order alternate service under CPLR 308(5) |
| Whether the Court should excuse defective service because DiPilato had actual notice of the suit | Actual notice makes technical defects in service immaterial; DiPilato will not be prejudiced | Lack of proper service defeats personal jurisdiction absent compliance with procedural rules | Court acknowledged DiPilato’s actual notice but required proper service and denied alternate service without required showing; warned against gamesmanship |
| Whether Vargas was required to attempt service at the Arizona address found online before seeking alternate service | Counsel intends to but has not yet attempted Arizona service; DiPilato refuses to cooperate | DiPilato’s residence in Arizona makes service there practicable and should be attempted | Court held Vargas must attempt or otherwise show impracticability of service at the Arizona address before requesting alternate methods |
Key Cases Cited
- Richards v. Hedman Res. Ltd., 204 A.D.3d 1407 (App. Div. 2022) (a court may not direct alternate service under CPLR 308(5) absent a showing that traditional methods under CPLR 308(1) or (4) are impracticable)
- Unite Nat’l Ret. Fund v. Ariela, Inc., 643 F. Supp. 2d 328 (S.D.N.Y. 2008) (parties may not actively avoid service and then seek dismissal for insufficiency of service of process)