Hernandez v. Lira of New York Inc.

Background

The plaintiffs brought claims under the Fair Labor Standards Act, a federal wage law, New York Labor Law, and the Spread of Hours Wage Order. They sued Lira of New York Inc., doing business as Luke’s Bar and Grill, and individual defendants Luigi Militelo, Tommy Tin, Jonathan Mateos, and Luigi Lusardi.

Militelo, Tin, and Mateos—the moving defendants—moved to dismiss for lack of personal jurisdiction based on allegedly improper service of process. The plaintiffs had filed affidavits stating that the moving defendants were served on August 12, 2020, by delivery of the summons and complaint to a person of suitable age and discretion at Luke’s Bar and Grill, followed by mailing to that business address. The affidavits were filed on September 28, 2020.

The moving defendants argued that the affidavits were filed too late under New York Civil Practice Law § 308(2). They also argued that the affidavits were false because no person matching the description in the affidavits had been present at the restaurant and the summonses and complaints had not arrived by mail. Their supporting affidavits came from Luigi Militelo and Ariana Militelo. The plaintiffs called these arguments speculative but did not otherwise address them.

After the plaintiffs amended the complaint, they filed new affidavits stating that the individual defendants had been served with the amended summons and amended complaint on September 13, 2021. The court found that the new affidavits did not show the same apparent defects as the earlier affidavits. The amended complaint, however, had been served more than a year after the original complaint was filed.

Court’s Analysis

Federal Rule of Civil Procedure 4(m) generally requires service within 90 days after a complaint is filed. An amended complaint does not restart that period for defendants named in the original complaint. The court therefore explained that, if service of the original complaint was invalid, the plaintiffs had not timely served the moving defendants merely by serving the amended complaint later.

The court rejected the argument that the plaintiffs’ late filing of proof of service itself made service invalid. Under New York law, late filing of proof of service is an irregularity that can be corrected, rather than a jurisdictional defect. The court concluded that its October 6, 2020 order effectively corrected the late filing.

The court treated the defendants’ sworn denials as sufficient to overcome the usual presumption created by a process server’s affidavit. Ordinarily, that conflict would require an evidentiary hearing to determine whether service of the original complaint was proper. The court declined to hold such a hearing because a finding that the original service was defective would not necessarily end the case.

Instead, the court exercised its discretion under Rule 4(m) to extend the service period. It considered the risk that many of the alleged Fair Labor Standards Act violations would become time-barred if the plaintiffs had to refile, the moving defendants’ actual notice of the lawsuit by October 27, 2020, the fact that the defendants waited nearly a year to challenge service, the absence of a specific showing of prejudice beyond ordinary litigation burdens, and the plaintiffs’ later service of the amended complaint using affidavits that showed no obvious defects.

Ruling and Deadlines

The court denied the moving defendants’ motion to dismiss. It granted the plaintiffs an extension of the service deadline to February 28, 2022, allowing them to perfect service by serving the amended complaint. The moving defendants and the non-moving individual defendant, Luigi Lusardi, were required to answer, move, or otherwise respond to the amended complaint by March 14, 2022. The clerk was directed to terminate the motion, and the plaintiffs were directed to serve the order on all four individual defendants and file proof of that service.