Beyond Bespoke Tailors, Inc. v. Barchiesi

Background

Plaintiffs Nick Torres and Beyond Bespoke Tailors sued James Barchiesi and several corporate defendants over claims including fraud, breach of fiduciary duty, and breach of contract. The court had already entered default judgment against the corporate defendants as to liability, while deferring damages until the claims against Barchiesi were resolved.

Barchiesi filed a third-party complaint against Linda Roth doing business as Roth CPA, Roth Associates, and Roth Certified Public Accountants. The third-party complaint asserted breach of contract and indemnification claims. Roth moved to dismiss under Federal Rules of Civil Procedure 12(b)(5), for insufficient service of process, and 12(b)(6), for failure to state a legally sufficient claim. Barchiesi moved for leave to amend. His proposed amended complaint would drop the breach-of-contract claim and add a common-law contribution claim.

Service and Amendment

Barchiesi served the third-party complaint on Roth’s law firm, which Roth said was not authorized to accept service. Barchiesi later attempted service by mail on Linda Roth. Barchiesi did not concede or deny that service was defective and instead sought permission to amend and properly serve Roth. He had been representing himself when he filed the third-party complaint and attempted service; counsel later entered an appearance for him.

The court stated that a party may amend a complaint once as a matter of course before the defendant files an answer or a motion that qualifies as a responsive pleading. The court also explained that it had discretion to extend the time for service. Roth had notice of the lawsuit because counsel received the complaint and summons and participated in the case. The court found that the risk of prejudice to Roth was low and that Barchiesi’s self-represented status supported flexibility concerning the service requirements.

Ruling

The court granted Barchiesi’s motion to amend the complaint and effect service. It denied Roth’s motion to dismiss. In its discussion, the court described the denial as “without prejudice” because Roth had not been properly served and the court was deferring the remaining dismissal arguments. In the conclusion, however, the court stated that Roth’s motion to dismiss was “DENIED” and that Barchiesi’s motion to file a third amended complaint was “GRANTED.” The court ordered Barchiesi to properly serve Roth and file proof of service within 30 days of entry of the order.

The court did not decide Roth’s arguments concerning venue or whether Barchiesi was a party to the agreement. The order addressed service and amendment rather than the underlying merits of the third-party claims.