Vargas v. Dipilato
- Edgardo Ramos
- 1:21-cv-03884
- U.S. District Court · Southern District of New York
- 4
In Vargas v. Dipilato, Judge Ramos denied Vargas’s request for email service because he had not shown Arizona service was impracticable.
The ruling directly affects Salvador Vargas’s effort to serve Alphonse DiPilato in the wage-law case. It denied email service for now but allowed Vargas to renew the request after showing that service in Arizona is impracticable.
What happened
In Vargas v. Dipilato, Salvador Vargas sued Alphonse DiPilato and his former employer under federal and New York wage laws. The court had previously found that DiPilato was not properly served and ordered Vargas to serve him again.
Vargas asked to serve DiPilato by email, saying service at two known New York addresses was impractical and that DiPilato had not responded to an email requesting his address. But Vargas’s lawyer had found an Arizona address apparently connected to DiPilato and had not yet tried serving him there.
The court denied the request because Vargas had not shown that ordinary service in Arizona would be impracticable. Judge Edgardo Ramos said Vargas could renew the request after making that showing and warned DiPilato not to obstruct service.
The detailed version
- Vargas v. Dipilato · No. 1:21-cv-03884
- Edgardo Ramos
- Oct. 5, 2023
Background
Salvador Vargas brought claims under the Fair Labor Standards Act and New York Labor Law against Alphonse DiPilato and his former employer. The opinion states that Alphonso’s Pizzeria, Inc. is now known as LES Pizza Shop, LLC. The caption also lists John Does 1–5 as defendants.
Vargas previously filed an affidavit stating that process had been served on a person identified as Juan “Smith” at a pizzeria address and had also been mailed there. He later sought permission to serve DiPilato by email. The court initially denied that request without prejudice, requiring Vargas to show that ordinary service was impracticable.
DiPilato later moved to dismiss for lack of personal jurisdiction, arguing that he had never been properly served and that he did not know the person who received the papers. On September 18, 2023, the court denied that motion but found that DiPilato had not been properly served under Federal Rule of Civil Procedure 4(e)(1). The court directed Vargas to serve him again within 30 days and noted that DiPilato had actual notice of the lawsuit.
Renewed request for alternate service
Vargas renewed his request under New York Civil Practice Law and Rules § 308(5) to serve DiPilato by email. Vargas’s lawyer stated that serving DiPilato at a residential address in upstate New York or at the pizzeria address in Manhattan was not practicable. The lawyer also reported conducting internet searches and emailing DiPilato to request his address, without receiving a response.
The searches produced an Arizona address that appeared to be connected to DiPilato. Vargas’s lawyer stated that he planned to have an Arizona process server attempt service at that address, but no attempt had yet been made.
Court’s analysis and ruling
The court held that Vargas had not yet shown that serving DiPilato in Arizona under the ordinary methods provided by New York law would be impracticable. Without that showing, the court stated that it lacked authority to order alternate service by email. The court therefore denied Vargas’s motion to serve DiPilato by alternate means.
The court warned DiPilato that service of process is not a “game of cat and mouse.” It stated that Vargas remained responsible for proving proper service, but DiPilato could not avoid liability by obstructing service. The court allowed Vargas to renew the application after showing that service in Arizona is impracticable. The Clerk was directed to terminate the motion.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.