Agapov v. UBIF Franchising Co.

Background

Dominick A. Agapov, proceeding without a lawyer, sued UBIF Franchising Co. He alleged that UBIF discriminated and retaliated against him because of race in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. He also asserted state-law claims for breach of contract, unpaid commissions, and defamation.

Agapov alleged that, after a workplace conversation concerning the Kyle Rittenhouse case and Black Lives Matter, he was moved from UBIF’s Scarsdale location to its Mount Kisco location, which he considered unsafe and undesirable. He said he protested the relocation and was terminated in November 2021. He also alleged that UBIF initially withheld his wages and continued to withhold earned commissions.

Agapov filed discrimination charges with the New York State Division of Human Rights and the Equal Employment Opportunity Commission. The agencies dismissed or rejected his discrimination complaint and issued notice of his right to sue. The case was initially filed in New York state court and was later removed to federal court because it included federal claims.

Motion to Dismiss

UBIF filed a renewed motion to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5), (6), and (7). The court first addressed service of process and personal jurisdiction, meaning whether Agapov properly delivered the summons and complaint and thereby gave the court authority over UBIF.

Agapov relied on an affidavit stating that a process server delivered the summons to a security guard at the corporate location of UBIF’s parent company. The security guard was not employed by UBIF and was not an officer, director, managing or general agent, or other person authorized to accept service for UBIF. The court held that leaving the summons with the security guard did not satisfy the federal or New York service rules. The court also rejected Agapov’s argument that the guard became an authorized agent by controlling access to the company’s offices.

Because service was defective, the court concluded that it could not exercise personal jurisdiction over UBIF. Agapov had not properly served UBIF after removal, and his time to serve had expired. The court found that Agapov had not shown legally sufficient good cause for missing the service deadline, but it exercised its discretion to extend the deadline anyway. The court relied on his good-faith effort to use a professional process server, UBIF’s actual notice of the lawsuit, his self-represented status, and the absence of identified prejudice to UBIF.

Disposition

The court granted UBIF’s motion to dismiss without prejudice. It granted Agapov until May 6, 2024, to serve UBIF properly under Rule 4 and file proof of service. UBIF could then answer or otherwise respond within 14 days after service.

The court declined to decide UBIF’s arguments that the complaint failed to state a claim, that some claims were time-barred, or that the New York State Division of Human Rights was a necessary party. The court expressly stated that it was not conducting a merits-based analysis because it lacked personal jurisdiction over UBIF. Judge Philip M. Halpern warned that failure to complete proper service by the deadline would result in dismissal of the action without prejudice.