Opinion
No. 02 Civ. 7311 (LTS)(AJP)
May 9, 2003
ORDER
Plaintiff has moved for permission to serve the summons and complaint in this action upon Defendant Peter Brant by alternative means, and/or for additional time to effect service upon Defendant Brant, pursuant to Rules 4(e)(1) and 4(m) of the Federal Rules of Civil Procedure. For the following reasons, Plaintiff's motion is granted.
Discussion
Rule 4(e) of the Federal Rules of Civil Procedure provides that service upon an individual within a judicial district of the United States may be effected "pursuant to the law of the state in which the court is located." Fed.R.Civ.Proc. 4(e)(1). In New York State, service may be made "in such manner as the court, upon motion without notice, directs, if service is impracticable" under the other methods specified in New York State Civil Practice Law and Rules ("CPLR") section 308. See CPLR § 308(5). "Section 308(5) requires a showing of impracticability of other means of service, but does not require proof of due diligence or of actual prior attempts to serve a party under the other provisions of the statute." SEC v. HGI, Inc., No. 99 Civ. 3866, 1999 WL 1021087, *1 (S.D.N.Y. Nov. 8, 1999). The meaning of "impracticable" depends on the facts and circumstances of a particular case. Markoff v. South Nassau Community Hospital, 458 N.Y.S.2d 672, 673 (App.Div.2d Dept. 1983).
Despite "extensive Internet searches" and inquiries with former clients formerly in contact with Mr. Brant, Plaintiff's counsel has been unable to determine Mr. Brant's residence or place of business. Plaintiff has therefore shown that it would be impracticable to serve Mr. Brant by the other provisions of Section 308(5). Cf. SEC v. Nnebe, No. 01 Civ. 5247, 2003 WL 402377, *3 (S.D.N.Y. Feb. 21, 2003) ("Courts have found a showing of impracticability, and have authorized alternative service, where a defendant could not be located . . . by searching computer databases").
Plaintiff has learned from the SEC that, although the SEC has also been unable to determine Mr. Brant's actual whereabouts, Mr. Brant has a Mail Boxes Etc. mailbox and is represented by Michael Tarre, Esq., who has an office at Two South Biscayne Boulevard, Suite 3250, Miami, Florida 33131. Plaintiff's counsel contacted Mr. Tarre, and Mr. Tarre acknowledged that he represented Mr. Brant. Mr. Tarre informed Plaintiff's counsel that Mr. Brant has an unlisted phone number and a mailbox address. Plaintiff's counsel asked Mr. Tarre if he was authorized to accept service for Mr. Brant, and Mr. Tarre replied that he did not know. Mr. Tarre later told Plaintiff's counsel that he had been in contact with Mr. Brant, and Mr. Brant had refused to allow M r. Tarre to accept service on his behalf.
Plaintiff proposes to serve Mr. Brant by serving the summons and complaint upon Mr. Tarre. Cf. Franklin v. Winard, 592 N.Y.S.2d 726 (App.Div. 1st Dept. 1993) (upholding ex parte order permitting, pursuant to section 308(5), service upon defendant's attorney). The Court finds that service upon Mr. Tarre is reasonably calculated to apprise Mr. Brant of the pendency of this action and affords him an opportunity to present his objections. See Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 (1950). Accordingly, Plaintiff's motion is granted to the extent it requests permission to effect service upon Mr. Brant pursuant to Rule 4(e)(1) by serving the summons and complaint upon Mr. Tarre. Plaintiff's time to effect such service is extended through and including July 10, 2003.
Conclusion
For the foregoing reasons, Plaintiff's motion is granted. Plaintiff shall effect service in the manner hereby authorized, by July 10, 2003.
SO ORDERED.