H&H Metals Corp v. Bernadet
- Lorna Schofield
- 1:23-cv-10640
- U.S. District Court · Southern District of New York
- 4
In H&H Metals Corp. v. Bernadet, Judge Schofield denied reconsideration but held H&H’s request to validate service on AMA pending further evidence.
H&H Metals Corp., Ernesto Bernadet, and AMA Resources Inc.; the order leaves the status of service on AMA unresolved, requires additional filings, and postpones the initial pretrial conference.
What happened
H&H Metals Corp. filed affidavits describing attempts to serve Ernesto Bernadet and AMA Resources Inc. The Court questioned whether those efforts complied with Federal Rule of Civil Procedure 4. H&H said it served AMA through the Florida Secretary of State and attempted to serve Bernadet and others at specified addresses.
H&H first moved for permission to use alternative service, including email and mail. The Court had denied that motion without prejudice because H&H had not shown that the proposed methods were reasonably likely to reach Bernadet. H&H then asked the Court to reconsider, arguing that service on AMA through the Florida Secretary of State had already been completed.
Judge Schofield denied the reconsideration motion because it was not the proper procedure for the relief H&H sought. The Court treated it instead as a request to rule that service on AMA was completed on January 10, 2024, and held that request pending evidence about legally required notice. The Court also required regular status letters and postponed the initial pretrial conference until service on all defendants is complete.
The detailed version
- H&H Metals Corp v. Bernadet · No. 1:23-cv-10640
- Lorna Schofield
- Apr. 30, 2024
Background
H&H Metals Corp. filed affidavits concerning service of the summons and complaint on Ernesto Bernadet and AMA Resources Inc. The Court ordered H&H to explain whether service complied with Federal Rule of Civil Procedure 4. H&H reported that it had mailed the papers to Bernadet and AMA under the parties’ security agreement, attempted personal service on Bernadet at the agreement’s address, and served AMA through the Florida Secretary of State. The materials filed with the Court did not initially include an affidavit reflecting the mailing and raised questions about the recipient’s address.
The Court gave H&H two possible paths: show that service complied with Rule 4, including potentially Florida Statute § 48.081, or move for alternative service. H&H chose the second path and asked to serve Bernadet by email and mail through two other individuals, and to serve AMA by emailing Bernadet as AMA’s registered agent. On April 8, 2024, the Court denied that motion without prejudice because H&H had not shown that the proposed methods were reasonably calculated to reach Bernadet. The Court allowed H&H to renew the motion with additional evidence and extended the service deadline to May 8, 2024.
Motion for Reconsideration
H&H then moved for reconsideration of the April 8 order. A motion for reconsideration asks the Court to change the decision being challenged. H&H’s motion did not ask the Court to approve the proposed alternative-service methods. Instead, it asked the Court to recognize that service on AMA had already been completed through the Florida Secretary of State under Florida law.
H&H relied on Florida Statute § 48.081(4), which permits service through the Secretary of State after due diligence when service cannot be completed on a corporation’s registered agent and at least one person listed on the corporation’s latest annual report. H&H’s declaration described attempted service on Bernadet as AMA’s registered agent and on two other individuals listed in AMA’s latest annual report. Florida Statute § 48.161 also requires notice of the service and a copy of the process through specified delivery methods, along with proof of delivery, unless an exception applies.
Ruling
The Court held that reconsideration was an improper vehicle because H&H was not seeking to change the April 8 decision denying alternative service. The Court therefore ordered that H&H’s motion for reconsideration was DENIED, but construed the motion as a request for an order declaring that service on AMA was completed when the papers were delivered to the Florida Secretary of State on January 10, 2024.
The Court held that request in abeyance, meaning it did not decide it yet, and required H&H to submit evidence by May 7, 2024, showing compliance with Florida’s notice requirement or showing that the requirement did not apply. The Court also ordered H&H to file status letters every 30 days about service on the defendants, including whether AMA had accepted service. The initial pretrial conference was adjourned indefinitely pending completion of service on all defendants. The Clerk was directed to close the motion at Docket No. 32.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.