Opinion
01 MDL 1428 (SAS).
March 2, 2007
Liaison Counsel For Plaintiffs in Blaimauer Geier: , Edward D. Fagan, Esq., New York, New York.
For Defendant Siemens Transportation Systems Corporation:, Brant W. Bishop, Esq., Frederick L. Block, Esq., Robert B. Gilmore, Esq., Kirkland Ellis LLP, Ryan M. Morettini, Esq., Kirkland Ellis LLP, Citigroup Center, New York, New York. Robert W. Littleton, Esq., Wilson Elser Moskowitz Edelman Dicker LLP, New York, New York.
MEMORANDUM OPINION AND ORDER
Siemens Transportation Systems Corporation's ("STS") December 29, 2006 motion to dismiss for improper service of process is denied. In the Second Circuit, "Rule 4 of the Federal Rules is to be construed liberally . . . `in cases in which the party has received actual notice.'" As evidenced by the record for both the November 17, 2006 and December 18, 2006 conferences, STS had actual notice of the claims asserted against it, and therefore, despite technical defects in plaintiffs' October 10, 2006 and November 22, 2006 services, I conclude that STS has been served under Rule 4.
Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986) (quoting Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972). Accord Lutin v. New Jersey Steel Corp., Nos. 93 Civ. 6612 and 95 Civ. 4965, 1996 WL 636037, at *5 (S.D.N.Y. Nov. 1, 1996).
In fact, on December 18, 2006 counsel for STS stated that "I am not all together confident that we have a problem with service." 12/18/06 Transcript of Conference ("12/18/06 Tr.") at 15.
See Fed.R.Civ.P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."). In determining the propriety of plaintiffs' service, I do not consider plaintiffs' attempted January 8, 2007 service, because I warned plaintiffs' counsel at the December 18, 2006 conference that "if the defendants move, no more second chance [for service]." 12/18/06 Tr. at 7.
The only "defect" that STS pointed to in the original October 10, 2006 service was that the return date was not filled in on the summons. However, this "defect" has not harmed STS in any way. Surely STS knows that under Rule 12(a) of the Federal Rules of Civil Procedure it has twenty days in which to respond to the summons, whether or not the number "twenty" is written in the box on the summons. Further, because STS has already begun to prepare other defenses to plaintiffs' claims, it is disingenuous for STS to claim that this minor defect in service has prejudiced it in any way.
See 11/17/2006 Transcript of Conference at 26-27. After hearing of this "defect," I asked that STS's counsel "accept service for the American company and not waste the Court's time," but counsel claimed that "I'm not authorized to do that." As a result, I allowed plaintiffs' counsel another chance to serve STS with the return time filled in. Id. at 27. I note, however, that I said that since "some of these defendants [including STS] are right here . . . [t]he service has to be good." Id. at 26.
See Memorandum of Law in Support of Defendant Siemens Transportation Systems Corp.'s Motion to Dismiss for Improper Service ("Def. Mem.") at 1, n.l ("Other grounds for dismissal under Rule 12(b) will be presented by way of a motion to be filed by January 26, 2007.").
See Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897, 900-901 (11th Cir. 1990) (holding that dismissal was not justified when the summons was missing the time for filing of an answer, but was otherwise "in substantial compliance" with the requirements of Rule 4(b), since defendant could not show prejudice). Accord United Food Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371 (9th Cir. 1984); U.S. v. Carney, 796 F. Supp. 700 (E.D.N.Y. 1992).
STS challenges the November 22, 2006 service because the complaint was served only on Siemens Corporation (which is no longer a defendant), and not on STS, and because the complaint served was different than the complaint on file as it named the wrong Hydac entity as a co-defendant. However, because I conclude that STS was properly served on October 10, 2006, the November 22, 2006 service was unnecessary.
See Def. Mem. at 2-3, 5, n. 5. I note that "the mere omission of some of the names of the defendants in the captions of the summonses did not constitute a jurisdictional impairment." Vega Matta v. Alvarez de Choudens, 440 F.Supp. 246, 249 (D.C.P. 1977), affd without opinion, 577 F.2d 722 (1st Cir. 1978) (holding that even though the names of some defendants were not included on the summons, "the purpose of service of process was fulfilled").
The Clerk of the Court is directed to close this motion [Nos. 93, 97 on the 03 Civ. 8960 Docket and No. 46 on the 03 Civ. 8961 Docket].
SO ORDERED.