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Tishman v. The Associated Press
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Judge Lynch

Plaintiffs Jeffrey Tishman and Arnold Wilkinson, former employees of the Associated Press (“AP”), bring this action against AP and several of its present and former officers, including Donald W. Pine (“Pine” or “defendant”), alleging age discrimination in violation of federal and state law. Plaintiffs move for permission to serve defendant by substituted service pursuant to Fed. R. Civ. P. 4(e) and N.Y. C.P.L.R. §308. The motion will be granted.

The federal rules authorize service “pursuant to the law of the state in which the district court is located.” Fed. R. Civ. P. 4(e). In New York State, subsections (1), (2), and (4) of N.Y. C.P.L.R. §308 provide for service by “personal delivery, delivery and mailing, and nailing and mailing, respectively.” Parisi v. Fretta, 542 N.Y.S.2d 713, 714 (2d Dep’t 1989). Where service pursuant to these subsections is “impracticable,” however, service may be effected “in such manner as the court, upon motion without notice, directs.” N.Y. C.P.L.R. §308(5); see State Street Bank and Trust Co. v. Coakley, 790 N.Y.S.2d 412, 413 (2d Dep’t 2005). Though the impracticability standard “is not capable of easy definition, it does not require the applicant to satisfy the more stringent standard of ‘due diligence’ under [N.Y.] C.P.L.R. §308(4), or to make a showing that actual prior attempts to serve a party under each and every method provided in the statute have been undertaken.” Id. (citations and internal quotation marks omitted); see also Astrologo v. Serra, 659 N.Y.S.2d 481, 481-82 (2d Dep’t 1997).

Plaintiffs argue that they may have effected service pursuant to N.Y. C.P.L.R. §308(4) by “nail and mail” service when, after making a diligent but unsuccessful effort to serve Pine pursuant to §308 (1) and (2), they affixed a summons to the door of Pine’s New York residence and mailed a summons to Pine’s last known residential address. See N.Y. C.P.L.R. §308(4) (“[W]here service under paragraphs one and two cannot be made with due diligence, [plaintiff may effect service] by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by . . . mailing the summons to such person at his or her last known residence . . . .”). However, in light of their uncertainty about whether the place where they posted the summons and complaint is still Pine’s residence, in view of representations that he has moved out of the United States, they seek leave to serve Pine by alternative means; specifically, they propose serving defendant at his Nantucket Island real property address by email to the internet address provided in real estate advertisements listing that property for sale. Given (1) that plaintiffs have attempted “nail and mail” service but are unable to confirm whether defendant was in fact successfully served, and (2) that defendant, despite being in communication with both the court and plaintiffs through his attorneys, refuses to disclose his current residence or place of business, other than to represent through his attorneys that he is living outside of the country for “career reasons,” the Court concludes that service under N.Y. C.P.L.R. §308(4) is impracticable, and that it is appropriate to allow substituted service under N.Y. C.P.L.R. §308(5) in the manner requested by plaintiffs. See Barclays Bank PLC v. Skulsky Trust, 731 N.Y.S.2d 443, 444 (1st Dep’t 2001) (upholding an order allowing substituted service under §308(5) by delivery to an internet address); see also Solomon v. Horie Karate Dojo, 724 N.Y.S.2d 648, 648-49 (2d Dep’t 2001) (upholding an order allowing substituted service under §308(5) where defendant had left the United States without leaving a forwarding address); Astrologo, 659 N.Y.S. 2d at 482 (upholding an order allowing substituted service under §308(5) where defendant was residing at an unspecified location in Italy).

Plaintiffs quite reasonably note that defendant is likely to receive actual notice by service through the advertised email, since a person would be expected to check for indications of interest in a proposed sale of real estate listed for sale at nearly $2 million. In any case, it is clear that Pine has received actual notice of the lawsuit already, since the law firm that represents the other individual defendants has already written the Court on his behalf, opposing plaintiffs’ request and providing information about Pine’s asserted residence outside the United States and the reasons therefor.

Pine’s attorneys do not contend that the proposed method of service would be inadequate to reach him, or would be unlawful under New York or federal law. Nor do they contend that the Court lacks either subject matter jurisdiction over plaintiffs’ claims or personal jurisdiction over him (provided that service can be effected).1 Rather, they argue only that (1) Pine has left the United States for legitimate career reasons, and not to avoid service of process; (2) Rule 4 does not permit substituted service under the circumstances here; and (3) since plaintiffs have asserted claims against other defendants, they would not be left without a remedy if Pine escaped service.

These arguments are unavailing. (1) Pine provides little information about why he is out of the country, whether or when he intends to return, and whether he still maintains residences in the United States. So far as the record discloses, he is an American citizen who maintains residences in New York and Nantucket, who (accepting counsel’s representations) is currently absent from the United States for “legitimate career reasons.” This unsworn assertion, which does not clearly indicate that it is made on personal knowledge, does not even state that Pine has actually accepted long-term employment abroad, let alone that he has moved his domicile to a foreign country. Under the circumstances, there is no reason to assume that merely because he is not currently in the United States, he cannot be reached by service of process in the manner proposed by plaintiffs, or that the Court should indulge his desire not to participate in this lawsuit, which concerns his actions in New York while, according to plaintiffs, he worked and resided here. (2) Pine’s assertion that Fed. R. Civ. P. 4 does not permit substituted service, which is entirely conclusory and unsupported by either reasoning or case law, is without merit. Regardless of why he is outside the United States, he has simply made himself unavailable for service by the ordinary methods, making service pursuant to §308(5) entirely appropriate for the reasons stated above. (3) Whether or not plaintiffs have a remedy against other defendants (or against Pine, for that matter) remains to be seen. They have chosen to assert claims against Pine, claiming to have been wronged by him. They are entitled to pursue those claims regardless of the potential merits of their overlapping claims against others.

Accordingly, the motion for substituted service will be granted. Plaintiffs may serve Pine by email to Pine’s internet address as publicly listed in connection with the sale of Pine’s Nantucket Island property. Plaintiffs shall file a certificate of service with the clerk of the court by March 1, 2006.

SO ORDERED.