Wollner v. PearPop Inc.

Background

Ryan S. Wollner sued PearPop Inc., Cole Mason, Spencer Markel, Cole Mason Enterprises LLC ("CME"), PearPop Talent LLC, PearPop Owner LLC ("PearPop Owner"), and 50 unidentified defendants. The complaint alleged, among other claims, fraudulent inducement, theft of trade secrets, breach of contract, and tortious interference. The opinion does not decide those claims.

Wollner filed affidavits stating that PearPop Inc. and PearPop Talent LLC had been served. He asked for permission to use alternative service—service by a method other than the usual methods—on Mason, Markel, CME, and PearPop Owner. He proposed sending the summons and complaint to email addresses for the individuals, emailing Mason on behalf of CME, and emailing Mason and counsel for the entity defendants on behalf of PearPop Owner.

Wollner said skip-tracing searches produced multiple possible addresses for Mason and Markel. He also said he had consulted public records and street-level imagery, requested addresses from in-house counsel associated with the entity defendants, and investigated registered-agent information. He believed Mason was in California and Markel was in Texas, but he did not identify definitive addresses. The opinion states that CME is a New York limited liability company and PearPop Owner is a Delaware limited liability company.

Legal Standard

The court applied New York law. Under that law, individuals generally should be served personally or by another authorized method, and limited liability companies generally may be served through a registered agent or the New York Secretary of State. A court may authorize an alternative method, including email, only when the authorized methods are impracticable—that is, not reasonably workable.

A request for alternative service must include a detailed, fact-based explanation of the efforts made to serve the defendants and why the usual methods cannot be used. Email service also requires evidence that the email addresses are current and likely to be checked or otherwise likely to give the defendants notice of the lawsuit.

Reasons for the Ruling

The court held that Wollner had not shown that traditional service on Mason and Markel was impracticable. He did not state how many addresses the skip-tracing searches produced, explain in detail how he evaluated those addresses, estimate the cost of attempting service there, or explain why that cost would be burdensome given his financial circumstances. The court stated that he might need to attempt personal service at addresses that had a reasonable chance of being valid, unless he could provide a detailed explanation that the addresses were probably invalid or that he could not afford the attempts.

The court also held that Wollner had not shown that service on CME and PearPop Owner was impracticable. His assertion that CME's registered-agent address no longer existed did not explain how he knew that. His statement that PearPop Owner had no registered agent did not explain where he had looked for that information. The court further stated that, even if service through a registered agent proved impracticable, Wollner had to explain why service through the New York Secretary of State was also impracticable. The court noted that service on a New York limited liability company is complete when process is delivered to the Secretary of State and described additional requirements that may apply to a foreign limited liability company not authorized to do business in New York.

Finally, the court stated that Wollner would need to show that the proposed email addresses were current and likely to notify the defendants. Documentation of recent communications through those addresses could provide that support.

Disposition

The court denied Wollner's motion for alternative service without prejudice to renewal after he attempts statutorily authorized service to the extent practicable and provides a detailed explanation of why those methods are impracticable. The conclusion states that the motion was "DENIED" and that Wollner may renew it if he later makes the required showing. The court extended the service period for the four unserved defendants to 60 days after the ruling.