Rosales v. Pepes Rest Group LLC

Background

Pascual Rosales brought claims under the Fair Labor Standards Act and New York Labor Law against Pepe’s Rest Group LLC, doing business as Tio Pepe, and individual defendants Germiniano Sans and Jimmy Sanz Jr. Rosales alleges that the defendants withheld wages for work he performed as a cook at Tio Pepe. He alleges that Sans and Sanz jointly owned and controlled the restaurant.

Rosales first attempted service on April 1, 2025, by delivering summonses at the restaurant to a person identified as “Mr. Ivan” and mailing copies to the individual defendants. After defendants disputed that service, Rosales attempted service on the individual defendants again on April 30, 2025, by delivering summonses to an unnamed person at the restaurant who identified himself as a manager. Tio Pepe was separately served through the New York Secretary of State on May 1, 2025.

Defendants’ Motion

The defendants moved under Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5). Rule 12(b)(4) concerns defects in the summons or other process; Rule 12(b)(5) concerns defective service of process.

The court held that Pepe’s Rest Group LLC and Germiniano Sans no longer had a live service objection because they had filed an answer without asserting that defense. The court therefore addressed the remaining motion as it applied to Sanz.

Insufficient Process

Sanz argued that the summons was defective because it identified him as “Jimmy Sanz Jr.” even though, according to the defendants, he does not use the suffix “Jr.” The court denied this part of the motion. It held that the incorrect suffix was a harmless technical error because Sanz had actual notice of the case, appeared through counsel, and participated in the litigation. The court also found no showing that Rosales had flagrantly disregarded the service rules.

Insufficient Service

The court concluded that Rosales had not established valid service on Sanz under New York Civil Practice Law and Rules § 308(2). That provision permits service by delivering the summons to a suitable adult at the defendant’s actual place of business and mailing the summons to the defendant at that place.

Sanz submitted a declaration stating that he was not an employee, owner, member, partner, director, officer, or other participant in Tio Pepe; did not conduct business there; and had no ownership, contractual, financial, or other legal interest in the restaurant. The court held that the process server’s conclusory statement that Tio Pepe was Sanz’s actual place of business, together with Rosales’s allegations in the amended complaint, was not enough to overcome Sanz’s specific sworn statements.

The court also rejected Sanz’s argument that the person who accepted service needed to be authorized by Sanz. Under the New York service provision at issue, authorization was not required; the recipient only needed to be a person of suitable age and discretion. But because Rosales did not show that Tio Pepe was Sanz’s actual place of business, the attempted service was still deficient.

Extension of Time to Serve Sanz

The court found that Rosales had not shown “good cause”—an exceptional circumstance beyond his control—for failing to complete service. Nevertheless, Rule 4(m) allows a court to extend the service deadline in its discretion.

The court granted an extension after balancing the relevant factors. It noted that dismissal would not immediately bar Rosales’s claims under the applicable statutes of limitations, that Sanz had actual notice of the case, that Sanz had not claimed prejudice from delayed service, and that Sanz had not concealed the service defect. The court also found that allowing another service attempt would be more efficient than requiring Rosales to file a separate case against Sanz.

Disposition

The court denied the motion to dismiss. It ordered Rosales to remedy the failure to properly serve Jimmy Sanz Jr. by July 30, 2025, and directed the Clerk of Court to close the motion docket entries.