United States District Court, D. New Jersey
Michael A. Hammer United States Magistrate Judge
matter comes before the Court by way of Plaintiff Byron
Cordova's motion for leave to serve the summons and
complaint by alternative means upon Defendant Mohammed
Hussein pursuant to Federal Rule of Civil Procedure 4(e).
Mot. for Alt. Service, D.E. 20. Specifically, Plaintiff
requests leave to effect service on Mr. Hussein by
“leave and mail” service at his place of
business. Pursuant to Federal Rule of Civil Procedure 78 and
Local Civil Rule 78.1, the Court decided this motion without
oral argument. For the reasons set forth below, the Court
will grant Plaintiff's motion.
16, 2019, Plaintiff filed this action against Defendants
Breezy Point Inc., Michael Chrone and Mr. Hussein, alleging
violations of the Fair Labor Standards Act, the New Jersey
Wage and Hour Law, the New Jersey Wage Payment Act and the
New Jersey Conscientious Employee Protection Act. Compl.,
D.E. 1, ¶ 1.
17, 2019, summonses were issued. Summons Issued, Jul. 17,
2019, D.E. 5. Since that time, Plaintiff has been unable to
serve Mr. Hussein. Through his process server, Plaintiff
served Breezy Point on August 23, 2019 and Michael Chrone on
September 26, 2019. Mot. for Alt. Serv., Decl. of Nicole
Grunfeld, Nov. 18, 2019, D.E. 20-1, ¶ 4. However,
despite repeated attempts to serve Mr. Hussein at his place
of business, Plaintiff's process server was unable to
personally serve Mr. Hussein.
November 18, 2019, Plaintiff filed the present motion for
alternative service, and a supporting Declaration of
Plaintiff's counsel, Nicole Grunfeld. Mot. for Alt.
Serv., Nov. 18, 2019, D.E. 20; Decl. of Nicole Grunfeld, Nov.
18, 2019, D.E. 20-1. Plaintiff seeks an Order permitting him
to serve Mr. Hussein by leaving a copy of the Summons and
Complaint with a person of “suitable age and
discretion” at 906 Mountain Avenue, Mountainside, New
Jersey 07092, Mr. Hussein's place of business, where he
is believed to work, own and operate a business. Memo. in
Supp. of Mot., Nov. 18, 2019, D.E. 20-4, at 1. Plaintiff
seeks to simultaneously mail a copy of the summons and
complaint via First Class Mail to the same Mountainside
to the Declaration of Plaintiff's counsel,
Plaintiff's process server attempted to serve Mr. Hussein
at his place of business on August 23, 2019, August 31, 2019,
September 7, 2019, September 9, 2019 and September 26, 2019.
Mot. for Alt. Serv., Decl. of Nicole Grunfeld, Nov. 18, 2019,
D.E. 20-1, ¶ 7. The process server reported that on
August 23 and 31, 2019, he spoke to an employee at 906
Mountain who indicated that Mr. Hussein was present at that
location, but the process server was unable to meet with Mr.
Hussein. Id. ¶ 8. The process server attempted
to serve Mr. Hussein at 906 Mountain on three more occasions
but was similarly unsuccessful. Id. ¶ 10.
Plaintiff's counsel declares that she believes that Mr.
Hussein is evading personal service in an attempt to avoid
this litigation. Id. ¶¶ 9, 15.
October 21, 2019, Defendants Breezy Point and Mr. Chrone
filed a motion to dismiss Plaintiff's Complaint, which
included, inter alia, a Certification from Mr.
Hussein. Mot. to Dismiss, Cert. of Mohammed Hussein, Oct. 21,
2019, D.E. 14-2; Mot. for Alt. Serv., Decl. of Nicole
Grunfeld, Cert. of Mohammed Hussein, Nov. 18, 2019, D.E.
20-2. In his Certification, Mr. Hussein acknowledges that he
is a Defendant in this action. Mot. for Alt. Serv., Decl. of
Nicole Grunfeld, Cert. of Mohammed Hussein, Nov. 18, 2019,
D.E. 20-2, ¶ 1. He certifies that he operates a kitchen
and restaurant as a sole proprietorship under the trade name,
Chrone's Pizza, which is leased to him by Breezy Point
and located within the same building as the distinct business
run by Breezy Point, a tavern. Id., ¶¶
3-5. Mr. Hussein has “complete control over the
operation and management of the kitchen and restaurant
operation with the Breezy Point tavern.” Id.,
¶ 6. Mr. Hussein further certifies that he does not
share any of the profits he earns as a result of running the
kitchen with either Breezy Point or Mr. Chrone. Id.,
¶ 8. He also certifies that he alone: (1) hires all
employees; (2) controls and assigns work to the kitchen
employees; (3) supervises the kitchen employees'
performance; and (4) is responsible for scheduling, payment
of wages, discipline and termination of the kitchen
employees. Id., ¶ 10.
seeks leave to effect service on Mr. Hussein by
“leave-and-mail” service of process on Mr.
Hussein's place of business, 906 Mountain Avenue,
Mountainside, New Jersey 07092. Id. ¶ 16.
argues that because he has made multiple attempts to
personally serve Mr. Hussein at his place of business, he
should be permitted to serve Mr. Hussein via “leave and
mail” service at his place of business. Memo. in Supp.
of Mot., Nov. 18, 2019, D.E. 20-4, at 5-6; Decl. of Nicole
Grunfeld, Nov. 18, 2019, D.E. 20-1, ¶ 16.
Rule of Civil Procedure 4(e) provides that:
Unless federal law provides otherwise, an individual-other
than a minor, an incompetent person, or a person whose waiver
has been filed-may be served in a judicial ...