UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
December 20, 2007
TRAVELODGE HOTELS, INC.
VIJAY INVESTMENTS, LLC
The opinion of the court was delivered by: Patty Shwartz United States Magistrate Judge
OPINION & ORDER
This matter having come before the Court on motion of plaintiff to permit it to serve defendant Vijay Investments, LLC. by mailing a copy of the summons and complaint by regular mail and certified mail/return receipt requested upon Vijay Patel, who listed as the agent for service on Vijay Investments; and the Court having considered the procedural history, including efforts made to personally serve defendant's registered agent;*fn1
and it appearing that the plaintiff has been unsuccessful in its efforts to effectuate service upon the out-of-state corporate defendant; and Fed. R. Civ. P. 4(h) governing service upon a corporation located in a judicial district of the United States and requiring that the corporation be served either "in the manner prescribed by Rule 4(e)(1), [which allows a party to follow state law for serving a summons in an action brought in the state court of the district in which the federal court is located] or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent and --if the agent is one authorized by statute and the statute so requires-- by also mailing a copy of each to the defendant"; and it appearing that Rule 4(h) requires that service upon a corporation be by "delivery"; and it appearing that the "[t] term "delivery" as used in . . .Rule 4(h)(1) does not include service by mail. . . ." Signs by Tomorrow-USA, Inc. v. G.W. Engel Co., Inc., Civ. No. 05-4353, 2006 WL 2224416, *3 (D.N.J. 2006)(citing Shomide v. ILC Dover LP, Civ. No. 03-1019, 2006 WL 2042969, at *4 (D.Del. July 20, 2006) (finding that plaintiff's service by certified mail did not satisfy the requirements of Federal Rule 4(h)); Spears v. Kroger Co., Civ. No. 05-2832, 2006 WL 2044986, at *2 (N.D.Ohio July 19, 2006) (noting that the term "delivery" in Federal Rule 4(h)(1) does not include service by mail); Mettle v. First Union Nat'l Bank, 279 F.Supp.2d 598 (D.N.J.2003) (finding that service by certified mail alone is insufficient to effectuate service in accordance with Federal Rule 4(h));
and the plaintiff having been unable to effectuate "delivery" and hence seeks to proceed under the alternate method incorporated into Rule 4(h); and Rule 4(h)(1) providing that service upon a corporation may be made "in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1)," Fed. R. Civ. P. 4(h)(1); and Rule 4(e)(1) stating that service may be made "pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State," Fed. R. Civ. P. 4(e)(1); and it therefore appearing that "service upon a corporation may be made in accordance with the New Jersey Rules of Court relating to service of process." Signs by Tomorrow-USA, Inc., 2006 WL 2224416 at 3; and the New Jersey Rules of Court providing for service upon a corporation outside of the state by mail, "[i]f it appears by affidavit ... that despite diligent effort and inquiry personal service cannot be made . . . ." N.J. Ct. R. 4:4-4(b)(1)(addressing service upon persons and entities located outside of New Jersey); Mettle v. First Union Nat. Bank, 279 F. Supp. 2d 598, 602 -03 (D.N.J 2003);*fn2
and Rule 4:4-4(b)(1) stating that if personal service cannot be effectuated "despite diligent effort and inquiry," then service may take place by "mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and simultaneously, by ordinary mail to . . . a corporation . . . that is subject to suit under a recognized name, addressed to a registered agent for service or to its principal place of business or to its registered office," N.J. Ct. R. 4:4-(b)(1)(C).; and it therefore appearing that "[i]n New Jersey, service can be made by certified mail [only] after personal service is [diligently*fn3 attempted but is] unsuccessful," Capers v. Quest Capital Strategies, Inc., Civ. No. 06-5780, 2007 WL 2033831, *1 (D.N.J. 2007)(citing N.J. Ct. R. 4:4-3); and it appearing that service under Rule 4:4-4(b)(1) does not require a Court Order; and if further appearing that, pursuant to Rule 4:4-4(b)(3), a Court Order is only required if: (1) service cannot be made by one of the modes listed in Rule 4:4-4; (2) such court ordered method for service is "consistent with due process of law"; and (3) the movant files an affidavit under Rule 4:4-5, which sets forth that the requisite diligent effort has been made;*fn4 and it appearing that plaintiff has made a diligent effort to personally serve the agent of the non-New Jersey corporation;*fn5 and it further appearing that service via regular mail and certified mail/return receipt requested on this agent would comport with due process based upon the defendant's consent to personal jurisdiction in this state, see Agreement at § 7.4 (the clause of the allegedly breached agreement pursuant to which the defendant, through Mr. Patel, consented to the personal jurisdiction of this Court and that state courts in Morris County, New Jersey); see also at § 14.6. and it appearing based upon this record, the Court has specific personal jurisdiction over the defendant and that the exercise of personal jurisdiction over the defendant would not offend traditional notions of fair play and substantial justice, see generally Blakey v. Continental Airlines, 164 N.J. 38, 66 (2000); and it therefore appearing that since the plaintiff can serve the defendant under Rule 4:4-4(b)(1)(C), the Court finds, pursuant to Rule 4:4-4(b)(3), that there is no need for a Court Order to permit the defendants to serve the defendant through its Agent, Vijay Patel, at 2 West Clay Park, San Francisco, California by regular mail and certified mail/return receipt requested;
IT IS THEREFORE ON THIS 20th day of December, 2007
ORDERED that the motion for an order permitting substituted service [Docket No. 3] is denied as unnecessary under N.J. Rules 4:4-4(b)(1)(C) and 4:4-4(b)(3). The Court will extend the deadline to effectuate service in accordance with Rule 4:4-4(b)(1)(C) and service shall be effectuated no later than January 30, 2008.