Nochimson v. Oasis Luxe Management & Co. Inc.
- Paul Engelmayer
- 1:22-cv-07197
- U.S. District Court · Southern District of New York
- 4
In Nochimson v. Oasis Luxe, Judge Cave denied Nochimson’s request to serve Memon through social-media platforms.
The ruling directly affected Debra Nochimson’s attempt to serve Michael G. Memon and required her to take another step concerning the case against him by March 15, 2023. It did not decide the underlying Fair Labor Standards Act claims.
What happened
In Nochimson v. Oasis Luxe Management & Co. Inc., Debra Nochimson asked to serve Michael G. Memon with the summons and complaint through iMessage, Instagram, and LinkedIn. The court had previously found that traditional service was impracticable, but an earlier request involving social media had been denied without prejudice.
The court explained that any alternative service method must be reasonably likely to inform Memon about the lawsuit and give him a chance to respond. Nochimson’s renewed request did not provide evidence that Memon would likely receive messages through those platforms.
The court denied the renewed request. Judge Sarah L. Cave ordered Nochimson, by March 15, 2023, either to explain why the case should not be dismissed as to Memon for failure to serve or prosecute, or to file an agreement voluntarily dismissing Memon from the case.
The detailed version
- Nochimson v. Oasis Luxe Management & Co. Inc. · No. 1:22-cv-07197
- Paul Engelmayer
- Mar. 8, 2023
Background
Debra Nochimson, on behalf of herself and others similarly situated in the proposed Fair Labor Standards Act collective action, sought permission to serve defendant Michael G. Memon through iMessage, Instagram, and LinkedIn. The court had previously authorized service by delivering the summons and complaint to Memon’s counsel of record. After that delivery, counsel asked the court to rescind the authorization. Nochimson then proposed service through Memon’s Instagram and LinkedIn accounts.
The court denied that earlier social-media request without prejudice because Nochimson had not provided supporting authority, while allowing her to renew the request with persuasive authority. She filed the renewed request on March 7, 2023.
Legal standard
Federal Rule of Civil Procedure 4(e) permits service on an individual under the law of the state where the federal court is located. New York law allows several traditional methods of service and also permits a court to direct another method when those methods are impracticable. Even when traditional service is impracticable, due process requires a method reasonably calculated to inform the defendant about the lawsuit and give the defendant an opportunity to object.
Application
The court reaffirmed that Nochimson had adequately shown that traditional service was impracticable or possibly impossible. But the court found that the renewed request did not include evidence showing that service through the social-media platforms would likely reach Memon. Because service through those platforms likely would not satisfy due process, the court denied the request.
Disposition
The court denied Nochimson’s renewed letter-motion. It ordered her, by March 15, 2023, either to show by affidavit or declaration why the case should not be dismissed as to Memon under Rule 4(m) or Rule 41(b) for failure to serve or prosecute, or to file a stipulation of voluntary dismissal as to Memon. The order warned that failure to comply could itself result in dismissal of the action as to Memon.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.