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Cordova v. Breezy Point Inc.

United States District Court, D. New Jersey

January 13, 2020

BYRON CORDOVA, etc., Plaintiff,
v.
BREEZY POINT INC., etc., et al., Defendants.

          OPINION

          Michael A. Hammer United States Magistrate Judge

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         On July 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.

         On July 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.

         On 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 restaurant. Id.

         According 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.

         On 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.

         Plaintiff 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.

         III. DISCUSSION

         Plaintiff 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.

         Federal 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 ...

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