Pepaj v. Innovative Facility Service

Background

An earlier order extended Valbona Pepaj’s deadline to serve the defendants until January 12, 2024. On that date, Pepaj filed an affirmation stating that she mailed the summons, complaint, and waiver-of-service form to Innovative Facility Service by certified mail. She also filed a letter describing her service efforts and stating that Alex Cabral still worked for the company. In another letter, she described a conversation with a representative of the New York Legal Assistance Group.

Pepaj submitted emails concerning possible service through KBS Services. One email stated that Cabral was an employee of Innovative Facility Service and that papers should be mailed to an address for Innovative Facility Service or to KBS Services’ corporate office. Another email asked whether KBS Services accepted service by email, and the response directed the sender to email the legal department. A process server, Miguel J. Sampaio, later submitted an affidavit stating that he emailed “the documents” to the KBS legal-department address and sent a courtesy copy to the legal department.

Service of process

The court held that it could not determine whether Pepaj had adequately served Innovative Facility Service or Cabral because Sampaio’s affidavit did not identify which documents he emailed. The court did not rule that service was valid or invalid. If the defendants failed to respond and Pepaj sought entry of a default, the court required her to file a supplemental affidavit from Sampaio listing all documents emailed to KBS Services and attaching the email, including its attachments.

The order also noted that a defendant receiving a valid request to waive service generally has 30 days to return the waiver and 60 days to answer or otherwise respond. It further stated that, if the request complied with the applicable rule and a defendant failed without good cause to return the waiver, the court must impose certain additional service expenses on that defendant.

Application to proceed without prepaying fees or costs

Although Pepaj paid the filing fee, the court stated that she might qualify to proceed without prepaying fees or costs. This status is commonly called proceeding “in forma pauperis.” If granted, it could permit her to rely on the United States Marshals Service, if necessary, to serve the summons and complaint. The court explained that eligibility requires a showing of poverty, but not absolute destitution, and provided the court’s application form.

The court did not grant or deny an application for this status. The appended form asked about income, assets, expenses, dependents, and debts.

Disposition

The order addressed the uncertainty about service and provided an application for possible cost-waiver status. It did not decide the merits of Pepaj’s claims, enter default, or determine that service had been completed.