Gonzalo Cornelio Basurto v. Giants Deli, Inc., et al.

Background

Gonzalo Cornelio Basurto filed a letter-motion seeking two forms of relief concerning service on defendant Ahmed Hassan: permission to serve Hassan by text message and an extension of the service deadline to December 8, 2025. Basurto submitted an affirmation from a process server and a due-diligence inquiry report. The report listed one possible address and three possible phone numbers. The process server stated that Hassan could not be served at the address and that a female occupant said Hassan had moved away about ten years earlier.

The opinion notes that Basurto also referred to service by newspaper publication, but the court treated that reference as a typographical error because the supporting report discussed phone numbers and did not discuss publication.

Legal standard

Federal Rule of Civil Procedure 4(e)(1) permits service under the law of the state where the federal court is located or where service occurs. Under New York law, when ordinary service methods are impracticable, a court may direct another method. Any alternative method must satisfy due process, meaning it must be reasonably calculated to notify the defendant about the lawsuit and give the defendant an opportunity to respond.

The court explained that text messaging is generally a concern when proposed as the only method of service. Courts have authorized text messages as an additional method supporting another primary method, particularly where the plaintiff has confirmed that the number belongs to the defendant or the defendant already knows about the lawsuit.

Court’s analysis

The court assumed, without deciding, that Basurto may have shown that ordinary service methods were impracticable. It nevertheless found that Basurto had not shown that text-message service alone was likely to reach Hassan. Basurto did not state whether he had tried contacting any of the three phone numbers or whether he had reached Hassan through them. He also did not describe efforts to verify that the numbers were associated with Hassan, such as confirmation from a phone company.

The court further noted that Basurto proposed text-message service as the sole method, rather than as part of a multiple-method approach. Basurto also did not indicate whether Hassan already knew about the lawsuit. For these reasons, the court held that exclusive service by text message was not reasonably calculated to notify Hassan and therefore did not satisfy due process.

Disposition

The court denied the request to serve Hassan by text message. It granted the request for an extension in part by extending the deadline to serve Hassan to Friday, October 24, 2025. The Clerk of Court was directed to close the motion at Docket No. 34. Judge Sarah L. Cave signed the opinion and order.