Vargas v. Dipilato

Background

Salvador Vargas sued Alphonse Dipilato, Alphonso’s Pizzeria, Inc., and a John Doe corporation under the Fair Labor Standards Act and New York Labor Law. Vargas alleged that he worked cleaning, setting up, and making deliveries at a pizzeria for about five years, working six days per week from approximately 10:00 a.m. until 11:00 p.m. or midnight. He alleged that he was paid $475 per week and did not receive overtime premiums or spread-of-hours pay.

Vargas alleged that Dipilato managed and operated the pizzeria and controlled hiring, firing, and pay. Vargas filed an affidavit stating that a process server delivered the summons and complaint to Juan “Smith,” a coworker of Dipilato, at 525 Grand Street, identified as the location of “Alphonso’s Pizza (A/K/A Pizza Shack),” and mailed the papers to that address.

Dipilato later answered and asserted that he had not been properly served and that the court therefore lacked personal jurisdiction over him. He moved to dismiss on that basis. He stated that he did not know Juan “Smith,” had moved out of New York in December 2020, and no longer had a business interest in the pizzeria. Vargas argued that Dipilato had waived the service defense by raising it only after answering and that the process server’s affidavit showed proper service.

Issues

The court addressed whether Dipilato waived his objection to service by answering and whether service at the pizzeria was effective under the applicable service rules. It also addressed whether the case had to be dismissed or whether Vargas could be allowed to serve Dipilato again.

Court’s analysis

Under Federal Rule of Civil Procedure 12(h), a defendant generally waives objections to personal jurisdiction and insufficient service of process by failing to raise them in a pre-answer motion or responsive pleading. The court held that Dipilato did not waive the objection because he specifically raised improper service and lack of personal jurisdiction in his answer.

Federal Rule of Civil Procedure 4(e)(1) allows service on an individual under the law of the state where the federal court sits or where service occurs. Under the New York rules relevant here, service required delivery to a suitable person at the defendant’s actual place of business, dwelling place, or usual abode, along with mailing to the defendant’s last known residence or actual place of business. Service at a former location is ineffective if that location is no longer the defendant’s actual place of business, dwelling place, or usual abode.

The process server’s affidavit initially created a rebuttable presumption that service was proper. The court treated the reference to “Alphonso’s Pizza” rather than “Alphonso’s Pizzeria” as a typographical error because the address and alternate names were correct. But Dipilato’s sworn statements that he did not know Juan “Smith,” had moved 18 months before service, and no longer had a business interest in the pizzeria rebutted that presumption. The court therefore concluded that Dipilato had not been properly served.

The court nevertheless declined to dismiss the case or hold an evidentiary hearing. Because Dipilato clearly had actual notice of the lawsuit—even before it was filed—the court directed Vargas to re-serve him instead. Actual notice did not itself make the earlier service valid, but it supported allowing re-service rather than dismissal.

Disposition

The court denied Dipilato’s motion to dismiss. It directed Vargas to serve Dipilato within 30 days and ruled that no default judgment could be entered against Dipilato until he was properly served. The order did not change the previously entered default judgment against Alphonso’s Pizzeria, Inc., which the opinion states had not appeared at the relevant hearing.