Nezaj v. PS450 Bar and Restaurant
- Paul Engelmayer
- 1:22-cv-08494
- U.S. District Court · Southern District of New York
- 3
In Nezaj v. PS450 Bar and Restaurant, Judge Engelmayer granted permission to serve Terry Brooks by email after traditional service proved impracticable.
Victoria Nezaj and defendant Terry Brooks, concerning how Brooks would be formally notified of the lawsuit.
What happened
In Nezaj v. PS450 Bar and Restaurant, Victoria Nezaj asked to serve defendant Terry Brooks by email. She said she had tried to find and personally serve Brooks at several addresses without success, and that Brooks had provided an email address where he could receive the lawsuit papers.
The court found that traditional service was impracticable and that email service was reasonably likely to reach Brooks. It granted Nezaj’s motion for alternative service by email.
Judge Paul Engelmayer directed Nezaj’s lawyer to resend the complaint, summons, and service waiver by email and call Brooks. If Brooks did not return the waiver within five days, Nezaj could file proof of service by email, with the required filing due February 17, 2023.
The detailed version
- Nezaj v. PS450 Bar and Restaurant · No. 1:22-cv-08494
- Paul Engelmayer
- Feb. 8, 2023
Background
Victoria Nezaj filed the complaint on October 5, 2022. She later asked for more time to serve defendant Terry Brooks. Nezaj reported that she had hired a service to conduct two searches for Brooks’s last known address and had attempted service at four addresses. During one attempt, a process server spoke with Brooks’s sister-in-law, who reportedly said Brooks did not live there, provided Brooks’s telephone number, and called Brooks. Nezaj represented that Brooks said his sister-in-law could accept service on his behalf. Nezaj continued trying to serve Brooks personally, but although the process server contacted him, Brooks did not provide an address where he could be served.
The court previously granted Nezaj a 30-day extension to serve Brooks. Nezaj then moved for permission to use alternative service by email. She stated that her lawyer had contacted Brooks by telephone and email, and that Brooks said he did not have an address for service but could receive the summons and complaint by email. Nezaj emailed the summons, complaint, and a service waiver to Brooks on January 20, 2023, but Brooks had not returned the waiver.
Court’s Analysis
Federal law allows service on an individual using methods permitted by the law of the state where the federal court is located. New York law permits a court to direct another method of service when the usual methods are impracticable. The court found that Nezaj had made diligent efforts to identify Brooks’s address, serve him personally, and determine how to complete service.
The court also concluded that email service would satisfy due-process requirements because it was reasonably calculated to notify Brooks of the lawsuit and give him an opportunity to respond. In particular, the court relied on Nezaj’s representation that Brooks himself had provided the email address to her lawyer, making it substantially reasonable to conclude that Brooks would receive service there.
Ruling
The court granted Nezaj’s motion for alternative service of process. Because Nezaj had not said whether her lawyer followed up after the January 20 email, the court directed her lawyer to resend the complaint, summons, and waiver by email and call Brooks to notify him of the email. If Brooks did not return a completed waiver within five days, the court authorized Nezaj to file an affidavit of service based on service by email. The court directed Nezaj to file either Brooks’s completed waiver or an affidavit and proof of service by February 17, 2023.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.