Deluca v. Access It Group Inc.

REPLY MEMORANDUM OF LAW in Support re: 4 FIRST MOTION to Dismiss Complaint.. Document

S.D.N.Y.July 16, 2008

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT NEW YORK ----------------------------------------------------------------x JEREMY F. DELUCA, Plaintiff, - against - ACCESS IT GROUP, INC., Defendant. : : : : : 08 Civ. 1699 (PKL) ----------------------------------------------------------------x DEFENDANT’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS MOTION TO DISMISS WOLFBLOCK LLP 250 Park Avenue New York, New York 10177 (212) 986-1116 Attorneys for Defendant Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 1 of 9 NYC:771049.2/ACC038-251706 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 REPLY STATEMENT OF FACTS.................................................................................................2 ARGUMENT...................................................................................................................................2 I. PLAINTIFF’S CLAIM FOR DOUBLE DAMAGES UNDER THE NEW YORK LABOR LAW SHOULD BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM. ..............................................................................................................2 A. “Commissioned Salespersons” Have No Claim to Double Damages Under the Labor Law. .........................................................................................................2 B. Plaintiff Has Not Alleged, and Cannot Allege, That Access IT is a “Principal” as Defined By the Labor Law. ..............................................................3 II. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED FOR INSUFFICIENT SERVICE OF PROCESS ....................................................................................................4 CONCLUSION................................................................................................................................6 Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 2 of 9 NYC:771049.2/ACC038-251706 - ii - TABLE OF AUTHORITIES Cases Crossen v. Bernstein, No. 91-cv-3501, 1994 WL 281881, * 3 (S.D.N.Y. June 23, 1994)............. 5 Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y. 1997), aff’d 173 F.3d 844 (2d Cir. 1999) ............................................................................................... 5 Macaluso v. New York State Dep’t of Envir. Conservation, 115 F.R.D. 16, 18 (E.D.N.Y. 1986) . 5 Statutes N.Y. LABOR LAW § 190 .................................................................................................................. 3 N.Y. LABOR LAW § 191-a ............................................................................................................... 3 N.Y. LABOR LAW § 191-c ............................................................................................................... 3 Other Authorities THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 153-58 (Columbia Law Review Ass’n et al. eds., 18th ed. 2005) ..................................................................................................................... 4 Rules FED. R. CIV. P. 4.............................................................................................................................. 5 Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 3 of 9 NYC:771049.2/ACC038-251706 1 PRELIMINARY STATEMENT Defendant AccessIT Group, Inc. (“AccessIT”) respectfully submits this reply brief in further support of its motion: a) pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss for failure to state a claim upon which relief can be granted plaintiff’s claim for double damages pursuant to the New York Labor Law; and b) to dismiss the entire complaint pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process. Plaintiff does not and cannot state a claim for double damages under section 191-c of the New York Labor Law. By his own admission, plaintiff’s complaint is defective in that it alleges that he is a “commissioned salesperson,” i.e., an employee, and only independent contractors are entitled to claim double damages pursuant to Labor Law section 191-c. Leave to amend is not warranted here, because any claim for double damages would be futile. Section 191-c by its plain terms only applies to manufacturers, and plaintiff does not and cannot allege that AccessIT is engaged in the business of manufacturing. As demonstrated below, the “proof” plaintiff attempts to adduce regarding AccessIT’s alleged manufacturing activities is emphemeral and shows nothing of the kind. Furthermore, plaintiffs’ entire complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process. Plaintiff has had three chances to serve AccessIT and still has not managed to do so properly. On his first try, plaintiff’s service was insufficient, as he failed to serve a summons at all. He got a second chance at service when AccessIT filed the present motion while time still remained for service, but he squandered this opportunity by doing nothing. On his third chance, which he now asks the Court to approve nunc pro tunc, plaintiff issued the summons himself in flagrant disregard of the rules without securing the Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 4 of 9 NYC:771049.2/ACC038-251706 - 2 - clerk’s signature and seal. There is no reason to give plaintiff a fourth chance to serve process in this action. REPLY STATEMENT OF FACTS Plaintiff Jeremy F. DeLuca commenced this action on February 20, 2008 by filing a complaint against defendant AccessIT. Rule 4(m) provided plaintiff with 120 days to serve process-a period which expired on June 19, 2008. On May 30, 2008, AccessIT filed the present motion. On July 3, 2007, AccessIT was served with a Civil Cover Sheet, Summons, Complaint, and Rule 7.1 Statement. Hark Reply Decl. ¶ 2 & Ex. A. The summons included with these papers did not bear the signature of the court clerk, nor did it contain this Court’s seal. Id. AccessIT has never been served with a summons bearing the signature of the clerk and the Court’s seal in this action. Id. ARGUMENT I. PLAINTIFF’S CLAIM FOR DOUBLE DAMAGES UNDER THE NEW YORK LABOR LAW SHOULD BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM.1 A. “Commissioned Salespersons” Have No Claim to Double Damages Under the Labor Law. Plaintiff concedes that “commissioned salespersons” have no claim to double damages, and now admits that his allegation to that effect was a mistake. Plainly, plaintiff did not bother 1 It is indicative of plaintiff’s abject failure to attend to the details of an action he commenced that he cites the defunct “no set of facts” standard announced in Conley v. Gibson, 355 U.S. 41 (1957). Of course, the Supreme Court abrogated this standard in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007) (“after puzzling the profession for 50 years, this famous observation has earned its retirement”). Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 5 of 9 NYC:771049.2/ACC038-251706 - 3 - to read the Labor Law before citing it in his complaint. He now purports to “withdraw” this claim, and asks that it be redacted, deemed stricken, or corrected through an amended pleading. Normally, the proper course of action might be dismissal with leave to file an amended complaint. However, since plaintiff has not and cannot plead a claim for relief under Labor Law section 191-c, leave to amend should be denied as futile, and plaintiff’s claim for double damages should be dismissed with prejudice. B. Plaintiff Has Not Alleged, and Cannot Allege, That Access IT is a “Principal” as Defined By the Labor Law. In order to assert a statutory cause of action under the Labor Law, plaintiff obviously must plead sufficient facts showing that he is entitled to relief under the statute. Plaintiff’s mere allegation that he was a “1099 sales person” does not state a claim under section 191-c, as not all independent contractors are covered by that statute. The New York Legislature expressly limited section 191-c’s reach to independent contractors retained by a particular group of persons-those engaged in the “business of manufacturing” who “manufacture, produce, import, or distribute a product for wholesale.” N.Y. LABOR LAW § 191-a(c). Far from a “loose reference,” as plaintiff suggests, this is the precise terminology the Legislature expressly chose. By way of contrast, section 190 broadly defines “employer” as “any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.” N.Y. LABOR LAW § 190(3) (emphasis added). By using far less expansive language in defining “principals” in section 191-a, the Legislature clearly indicated that the protections of section 191-c would only apply to independent contractors retained by certain employers. Plaintiff inexplicably criticizes defendant for citing the plain language of the statute, but he fails to cite any authority suggesting that defendant is a principal under the statute. Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 6 of 9 NYC:771049.2/ACC038-251706 - 4 - When measured against that plain language, plaintiff’s current complaint fails to set forth a cause of action and should be dismissed for that reason. Furthermore, it should be dismissed with prejudice because any attempt by plaintiff to allege that defendant is a “principal” would be futile-as demonstrated by the feeble affidavit submitted by plaintiff’s counsel. Plaintiff’s counsel submits a single page from defendant’s website-without the standard explanation of who accessed this site, or when it was last viewed. See generally THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 153-58 (Columbia Law Review Ass’n et al. eds., 18th ed. 2005). Plaintiff’s counsel argues-without any explanation-that the mere fact that defendant’s website indicates it offers products as well as design services demonstrates that defendant is a manufacturer. Retailers sell products, and architects sell design services; neither falls within the scope of section 191-c for that reason alone. Plaintiff’s own silence on this motion is telling. He presumably possesses far more familiarity with defendant’s business and industry than his counsel, yet he did not submit any sworn statement on this motion, let alone one claiming that defendant is involved in manufacturing. Plaintiff’s counsel did not even bother to attach the webpage discussing defendant’s “products,” nor did he indicate what these products are, or even state that defendant manufactured them. Plaintiff’s silence and the shortcomings of his counsel’s affidavit are easily explained: defendant is not a principal under section 191-c, and neither plaintiff nor his counsel bothered to familiarize themselves with the Labor Law before asserting a claim for double damages. The Court should dismiss this claim with prejudice. II. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED FOR INSUFFICIENT SERVICE OF PROCESS As defendant has challenged the sufficiency of service of process, “the burden of proof is on the plaintiff to show the adequacy of service.” Howard v. Klynveld Peat Marwick Goerdeler, Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 7 of 9 NYC:771049.2/ACC038-251706 - 5 - 977 F.Supp. 654, 658 (S.D.N.Y. 1997), aff’d 173 F.3d 844 (2d Cir. 1999). The Court should dismiss this action due to plaintiff’s failure to come forth with any evidence that he timely served a summons, and for his absolute and unexplained failure to conform with the straightforward provisions of Rule 4, despite ample opportunity to do so. Plaintiff has already had three chances to effect proper service. On his first chance at service, plaintiff failed to serve AccessIT with a summons-a fact that is not in dispute, as plaintiff has not submitted any proof that he caused AccessIT to receive a summons. The affidavit of service plaintiff filed with the Court does not claim to have served a summons. (Dkt. entry no. 7; affidavit of service of “notice of sheriff’s sale of real property”). He received a second chance when AccessIT filed the present motion on May 30, 2008. At that time, plaintiff still had nearly three weeks in which to properly serve process before the deadline prescribed by Rule 4(m).2 He made no effort to do so. Finally, plaintiff caused defendant to be served after the deadline had expired, on July 3, 2008, with a summons improperly issued without the court clerk’s signature, and without the seal of this Court. Rule 4 plainly requires that a summons must “be signed by the clerk; and bear the court’s seal.” Rule 4(a)(1)(F,G); Rule 4(b) (“If the summons is properly completed [by plaintiff], the clerk must sign, seal, and issue it to the plaintiff for service on the defendant”). Failure to adhere to these plain requirements is not merely a technical defect; it is a “flagrant disregard” of the rules. Crossen v. Bernstein, No. 91-cv-3501, 1994 WL 281881, * 3 (S.D.N.Y. June 23, 1994) (Leisure, J). See also Macaluso v. New York State Dep’t of Envir. Conservation, 115 F.R.D. 16, 18 (E.D.N.Y. 1986). Plaintiff has not claimed that he ever properly presented a summons to the clerk for issuance. 2 As plaintiff commenced this action on February 20, 2008, he had until June 19, 2008 to serve process. Fed. R. Civ. P. 4(m). Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 8 of 9 NYC:771049.2/ACC038-251706 - 6 - Plaintiff now asks the Court to approve this untimely service nunc pro tunc pursuant to Rule 4(m), either for good cause shown or pursuant to the Court’s discretion, but Rule 4(m) does not permit a plaintiff to avoid the plain requirements set forth in the other parts of the rule. In any event, plaintiff’s lack of diligence, carelessness, and flagrant disregard for the rules hardly constitutes “good cause” or a basis for an exercise of judicial discretion. Such conduct instead warrants dismissal of this action. CONCLUSION For all the foregoing reasons as well as those set forth in its initial brief, AccessIT’s motion should be granted, and plaintiff’s complaint should be dismissed. Dated: New York, New York July 16, 2008 WOLFBLOCK LLP By: /s/ Jennifer F. Beltrami (jbeltrami@wolfblock.com) James L. Simpson (jsimpson@wolfblock.com) 250 Park Avenue New York, New York 10177 (212) 986-1116 Attorneys for Defendant Case 1:08-cv-01699-PKL Document 11 Filed 07/16/2008 Page 9 of 9 Case 1:08-cv-01699-PKL Document 11-2 Filed 07/16/2008 Page 1 of 1 EXHIBIT A Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 1 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 2 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 3 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 4 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 5 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 6 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 7 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 8 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 9 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 10 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 11 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 12 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 13 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 14 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 15 of 16 Case 1:08-cv-01699-PKL Document 11-3 Filed 07/16/2008 Page 16 of 16 NYC:771336.1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT NEW YORK ----------------------------------------------------------------x JEREMY F. DELUCA, Plaintiff, - against - ACCESS IT GROUP, INC., Defendant. : : : : : 08 Civ. 1699 (PKL) CERTIFICATE OF SERVICE ----------------------------------------------------------------x I, James L. Simpson, certify that on this 16th day of July, 2008, I caused the foregoing Defendant’s Reply Memorandum of Law in Further Support of Its Motion to Dismiss, and Reply Declaration of David B. Hark to be served electronically through the Court’s CM/ECF E-filing system on all known counsel of record. Executed on July 16, 2008 /s/ James L. Simpson Case 1:08-cv-01699-PKL Document 11-4 Filed 07/16/2008 Page 1 of 1