Experience Hendrix, L.L.C. v. Pitsicalis

Background

On October 19, 2020, the plaintiffs moved for an order of civil contempt against defendant Leon Hendrix and non-parties Tina Hendrix and Hendrix Music Academy. The court ordered the plaintiffs to serve the motion and supporting papers and file proof of service. After finding the initial affidavits of service insufficiently reliable, the court required the plaintiffs to explain why service on each person or entity was legally effective. The plaintiffs also asked for permission to use email as an alternative method of service.

Leon Hendrix

The court held that Leon Hendrix had been properly served. The papers were delivered at his residence to a roommate of suitable age and discretion, and a copy was sent by United States Postal Service Priority Mail to that address. The court relied on Federal Rule of Civil Procedure 4 and New York Civil Practice Law and Rules § 308(2).

Tina Hendrix and Hendrix Music Academy

The plaintiffs attempted service three times at the Renton address listed for Tina Hendrix and Hendrix Music Academy. On one occasion, a process server gave the papers to Tina Hendrix’s 14-year-old grandson. On two other occasions, an adult was present, but service was refused and the process server left the papers at the front door. The plaintiffs also sent the papers by Priority Mail.

The court was not firmly persuaded that these efforts produced proper service. It nevertheless found traditional service impracticable because the plaintiffs had made multiple unsuccessful attempts, including attempts at an address that appeared to be Tina Hendrix’s residence and that Hendrix Music Academy had listed for its registered agent and principal place of business.

Alternative service and due process

New York law permits a court to direct another method of service when service through the usual methods is impracticable. The court also found that email service would satisfy due process, which requires a method reasonably calculated to notify interested parties about the case and give them an opportunity to object. The plaintiffs identified tinahendrix1@yahoo.com as an email address for service, and Tina Hendrix had previously contacted the court through that address. The court therefore concluded that email was likely to reach Tina Hendrix and Hendrix Music Academy.

Disposition

The court granted the plaintiffs leave to serve Tina Hendrix and Hendrix Music Academy by email. It directed the plaintiffs to email the contempt-motion papers and the order, file proof of service on the electronic docket, and allowed the two recipients two weeks after service to respond. The order addressed service only; it did not rule on whether civil contempt had occurred.