Opinion
02 Civ. 0589 (LAK)
June 26, 2002
ORDER
Plaintiff again moves for a default judgment against Montgomery Sterling, Inc. ("MSI"), this time alleging that it was served by virtue of the fact that the summons and complaint were served upon its president, Mr. Cappone, by delivery thereof to a person of suitable age and discretion at Mr. Cappone's last known address. Bruno Aff. ¶ 6. It is far from clear, however, that service on a person who is a corporate officer or director that is sufficient to obtain jurisdiction over the person in his individual capacity suffices also to obtain jurisdiction over the corporation of which he is an officer or director.
Fed.R.Civ.P. 4(h) permits service on a corporation within a judicial district of the United States either by service pursuant to state law (as permitted in Rule 4(e)(1)) or, so far as is relevant here, "by delivering a copy of the summons and of the complaint to an officer, a managing agent or general agent, or to any other agent authorized by appointment or by law to receive service of process . . ."
The delivery of copies of the summons and complaint to a person of suitable age and discretion at Mr. Cappone's last known address does not appear to constitute delivery to an officer, managing agent, or other agent specified in Rule 4(h) irrespective of whether it would have been sufficient to serve Cappone in his individual capacity. A comparison of Rule 4(e)(2), which permits such service on individuals, with the quite different language of Rule 4(h) seems to make this perfectly clear.
Similarly, N.Y. CPLR § 311, subd. 1, permits service on a corporation by delivery of the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service . . ." It does not appear to contemplate service by leaving the summons with a personal of suitable age and discretion at the last known address of a corporate officer. Compare id. with N.Y. CPLR § 308, subd. 2.
Accordingly, the motion for a default judgment against MSI is denied without prejudice to renewal upon a proper showing that service on Mr. Cappone as an individual was sufficient to obtain jurisdiction over MSI notwithstanding that the manner of service on Mr. Cappone appears to have satisfied neither Fed.R.Civ.P 4(h) nor CPLR § 308, subd. 1.
SO ORDERED.