UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TEJUOSHO OLUSINA ADEWALE, Civil Action # 1:21-cv-09485-JPC-BCM Plaintiff, v.
OLUBUNMI ADEOLA LETTER REQUEST FOR SUBSTITUTED AKINTOYE, OLURANTI D. SERVICE AND BRIEF EXTENTION OF AKINTOYE, BUMAK AFRICAN TIME TO SERVE STORES, GEORGE K. WILLIAMS and DAMILOLA AKINTOYE, Defendants. Your Honor, Counsel for Plaintiff requests by Letter Motion Substituted Service, a brief Extension of Time to serve Defendants with a copy of the Court’s Order dated April 1, 2022 (ECF 28), and a one (1) day extension of time to re-file the Motion for Default Judgment on June 3, 2022. The original deadline was set for June 2, 2022 (ECF 30). The reason for the request is because service cannot be accomplished at the last known physical address of the Defendants, because any mail sent is returned as undeliverable or attempts at personal service are unsuccessful. There have been no prior requests for an adjournment. Since there were no prior adjournment requests, no prior adjournment requests have been granted or denied. Opposing counsel has not filed a notice of appearance in this action, and thus, Defendants have both failed to appear and are currently unrepresented. There exists a related matter to this action, Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021). Counsel has been working off of a single folder titled “Akintoye” for both civil actions. Consequently, the Memorandum of Law previously filed as Attachment #2 under (ECF 29) was captioned and related to Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021) and not this action. This can be corrected within one (1) day, and counsel respectfully requests your Honor’s permission to re-file the Motion for Default Judgment with the correct Memorandum of Law by June 3, 2022. Further, attempted service was returned back as undeliverable. Plaintiff seeks leave for authorization of alternate methods of service of the Court’s April 1, 2022 Order or clarification that service shall be deemed effective and complete even if a mail courier is unable to obtain a signature from anyone living or present at Defendants’ physical address. I. Defendants Have Knowledge of the Action and Have Defaulted On October 21, 2021, Vincent Bianco, Esq. filed a Notice of Appearance for Defendants in the Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021) action. By joint letter to the Court in the Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021) action, Vincent Bianco, Esq. was put on notice of this instant action. Attached and annexed herein as Exhibit D to this Letter Request is a true and accurate copy of said Joint Letter to the Court. Attached and annexed herein as Exhibit A, Exhibit B, and Exhibit C to this Letter Request are true and accurate copies of affidavits of due diligence from a third-party process server attempting to accomplish service at the address previously used by all Defendants, and where original service of process was successfully accomplished. Attached and annexed herein as Exhibit E to this Letter Request are true and accurate copies of the certified mailings to Defendants returned as undeliverable. Attached and annexed herein as Exhibit F to this Letter Request is a true and accurate copy of an Order granting the Plaintiff’s request for authorization of substituted service upon Defendants in the Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021) action. Defendants clearly have knowledge of this action. Plaintiffs are seeking to discharge is obligations towards Defendants with respect to serving Defendants a copy of the April 1, 2022 Order (ECF 28). Defendants, however, are clearly seeking to intentionally avoid service, and the Plaintiff does not know of any other physical locations other than those listed below in which service may be accomplished. Therefore, Plaintiffs request both a reasonable extension of time provided to “serve” Defendants with a copy of the April 1, 2022 Order (ECF 28) to attempt the 455 Jackson Avenue Bronx, NY 10455 address (and any method of substitute service approved by the Court) by June 3, 2022. Further, the Plaintiffs request approval of mailing a copy of the April 1, 2022 Order (ECF 28) via certified mail to the last known addresses for Defendants, 455 Jackson Avenue Bronx, NY 10455 and 14544 Macbeth Drive Silver Spring, MD 20906 by June 3, 2022. In addition to the alternative method requested, the Plaintiffs also request approval of the simultaneous publication of the April 1, 2022 Order (ECF 28) on PACER ECF/CM by June 3, 2022, which is a forum available to the public, considering that Defendants are already aware of this action. II. Applicable Legal Standard Federal Rule of Civil Procedure 4(e) provides, inter alia, that an individual may be served pursuant to the procedures allowed by state law in the state in which the district court is located. FRCP 4(e)(1). New York state law applies here, and permits service to be effectuated, “in such manner as the court, upon motion without notice, directs, if service is impracticable” under the other specified methods of service. CPLR § 308(5). “Section 308(5) requires a showing of impracticability, under the facts and circumstances of the case, but does not require proof of due diligence or of actual prior attempts to serve a party under the other provisions of the statute.” Shamoun v. Mushlin, No. 12 Civ. 3541 (AJN), 2013 WL 91705, at *2 (S.D.N.Y. Jan. 8, 2013). III. Alternative Means of Service Satisfies Due Process “Constitutional notions of due process require that any means of service be reasonably calculated, under all circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.” SEC v. Antisevic, No. 05 Civ. 6991 (KMW), 2009 WL 361739, at *4 (S.D.N_Y. Feb 13, 2009) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). In general, courts have authorized alternative service via certified mail to a last known address. See, e.g., Ferrarese v. Shaw, 164 F.Supp.3d 361, 366 (S.D.N.Y 2016). Lastly, service by alternative means is all the more reasonable where a defendant demonstrably already has knowledge of the lawsuit. See SEC v. Tome, 833 F.2d 1086, 1093 (2d Cir. 1987). Respectfully,
BRACH EICHLER LLC BY:___/s/ Angelo Langadakis HI ANGELO LANGADAKIS III, ESQ. 101 Eisenhower Parkway Roseland, NJ 07068 Attorneys for Plaintiff Plaintiff's request to re-file the memorandum of law in suppot Dated: June 2, 2022 his motion for default judgment is granted. Plaintiff shall file correct memorandum of law and accompanying document: TO: OLUBUNMI ADEOLA AKINTOYE support of his motion for default judgment by June 3, 2022. 455 Jackson Avenue As to Plaintiff's request for alternative service of the Court's A Bronx, NY 10455 1, 2022 Order, Dkt. 28, and his default judgment papers Defendants, the Court requires additional information fi BUMAK AFRICAN STORES Plaintiff before it may approve Plaintiff's request for alterna 455 Jackson Avenue service. Accordingly, it is hereby ORDERED that, by Jun Bronx, NY 10455 2022, Plaintiff shall file a letter advising the Court as to following: OLURANTI D.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TEJUOSHO OLUSINA ADEWALE, Civil Action # 1:21-cv-09485-JPC-BCM Plaintiff, v.
OLUBUNMI ADEOLA LETTER REQUEST FOR SUBSTITUTED AKINTOYE, OLURANTI D. SERVICE AND BRIEF EXTENTION OF AKINTOYE, BUMAK AFRICAN TIME TO SERVE STORES, GEORGE K. WILLIAMS and DAMILOLA AKINTOYE, Defendants. Your Honor, Counsel for Plaintiff requests by Letter Motion Substituted Service, a brief Extension of Time to serve Defendants with a copy of the Court’s Order dated April 1, 2022 (ECF 28), and a one (1) day extension of time to re-file the Motion for Default Judgment on June 3, 2022. The original deadline was set for June 2, 2022 (ECF 30). The reason for the request is because service cannot be accomplished at the last known physical address of the Defendants, because any mail sent is returned as undeliverable or attempts at personal service are unsuccessful. There have been no prior requests for an adjournment. Since there were no prior adjournment requests, no prior adjournment requests have been granted or denied. Opposing counsel has not filed a notice of appearance in this action, and thus, Defendants have both failed to appear and are currently unrepresented. There exists a related matter to this action, Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021). Counsel has been working off of a single folder titled “Akintoye” for both civil actions. Consequently, the Memorandum of Law previously filed as Attachment #2 under (ECF 29) was captioned and related to Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021) and not this action. This can be corrected within one (1) day, and counsel respectfully requests your Honor’s permission to re-file the Motion for Default Judgment with the correct Memorandum of Law by June 3, 2022. Further, attempted service was returned back as undeliverable. Plaintiff seeks leave for authorization of alternate methods of service of the Court’s April 1, 2022 Order or clarification that service shall be deemed effective and complete even if a mail courier is unable to obtain a signature from anyone living or present at Defendants’ physical address. I. Defendants Have Knowledge of the Action and Have Defaulted On October 21, 2021, Vincent Bianco, Esq. filed a Notice of Appearance for Defendants in the Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021) action. By joint letter to the Court in the Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021) action, Vincent Bianco, Esq. was put on notice of this instant action. Attached and annexed herein as Exhibit D to this Letter Request is a true and accurate copy of said Joint Letter to the Court. Attached and annexed herein as Exhibit A, Exhibit B, and Exhibit C to this Letter Request are true and accurate copies of affidavits of due diligence from a third-party process server attempting to accomplish service at the address previously used by all Defendants, and where original service of process was successfully accomplished. Attached and annexed herein as Exhibit E to this Letter Request are true and accurate copies of the certified mailings to Defendants returned as undeliverable. Attached and annexed herein as Exhibit F to this Letter Request is a true and accurate copy of an Order granting the Plaintiff’s request for authorization of substituted service upon Defendants in the Bamisile-Richards v. Akintoye, 1:21-cv-5264-PAE (S.D.N.Y. 2021) action. Defendants clearly have knowledge of this action. Plaintiffs are seeking to discharge is obligations towards Defendants with respect to serving Defendants a copy of the April 1, 2022 Order (ECF 28). Defendants, however, are clearly seeking to intentionally avoid service, and the Plaintiff does not know of any other physical locations other than those listed below in which service may be accomplished. Therefore, Plaintiffs request both a reasonable extension of time provided to “serve” Defendants with a copy of the April 1, 2022 Order (ECF 28) to attempt the 455 Jackson Avenue Bronx, NY 10455 address (and any method of substitute service approved by the Court) by June 3, 2022. Further, the Plaintiffs request approval of mailing a copy of the April 1, 2022 Order (ECF 28) via certified mail to the last known addresses for Defendants, 455 Jackson Avenue Bronx, NY 10455 and 14544 Macbeth Drive Silver Spring, MD 20906 by June 3, 2022. In addition to the alternative method requested, the Plaintiffs also request approval of the simultaneous publication of the April 1, 2022 Order (ECF 28) on PACER ECF/CM by June 3, 2022, which is a forum available to the public, considering that Defendants are already aware of this action. II. Applicable Legal Standard Federal Rule of Civil Procedure 4(e) provides, inter alia, that an individual may be served pursuant to the procedures allowed by state law in the state in which the district court is located. FRCP 4(e)(1). New York state law applies here, and permits service to be effectuated, “in such manner as the court, upon motion without notice, directs, if service is impracticable” under the other specified methods of service. CPLR § 308(5). “Section 308(5) requires a showing of impracticability, under the facts and circumstances of the case, but does not require proof of due diligence or of actual prior attempts to serve a party under the other provisions of the statute.” Shamoun v. Mushlin, No. 12 Civ. 3541 (AJN), 2013 WL 91705, at *2 (S.D.N.Y. Jan. 8, 2013). III. Alternative Means of Service Satisfies Due Process “Constitutional notions of due process require that any means of service be reasonably calculated, under all circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.” SEC v. Antisevic, No. 05 Civ. 6991 (KMW), 2009 WL 361739, at *4 (S.D.N_Y. Feb 13, 2009) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). In general, courts have authorized alternative service via certified mail to a last known address. See, e.g., Ferrarese v. Shaw, 164 F.Supp.3d 361, 366 (S.D.N.Y 2016). Lastly, service by alternative means is all the more reasonable where a defendant demonstrably already has knowledge of the lawsuit. See SEC v. Tome, 833 F.2d 1086, 1093 (2d Cir. 1987). Respectfully,
BRACH EICHLER LLC BY:___/s/ Angelo Langadakis HI ANGELO LANGADAKIS III, ESQ. 101 Eisenhower Parkway Roseland, NJ 07068 Attorneys for Plaintiff Plaintiff's request to re-file the memorandum of law in suppot Dated: June 2, 2022 his motion for default judgment is granted. Plaintiff shall file correct memorandum of law and accompanying document: TO: OLUBUNMI ADEOLA AKINTOYE support of his motion for default judgment by June 3, 2022. 455 Jackson Avenue As to Plaintiff's request for alternative service of the Court's A Bronx, NY 10455 1, 2022 Order, Dkt. 28, and his default judgment papers Defendants, the Court requires additional information fi BUMAK AFRICAN STORES Plaintiff before it may approve Plaintiff's request for alterna 455 Jackson Avenue service. Accordingly, it is hereby ORDERED that, by Jun Bronx, NY 10455 2022, Plaintiff shall file a letter advising the Court as to following: OLURANTI D. AKINTOYE (1) How Plaintiff initially identified the 455 Jackson Ave 14544 Macbeth Drive address for Defendants Olubunmi Adeola Akintoye and But Silver Spring, MD 20906 African Stores, and the 14544 Macbeth Drive address Defendant Oluranti Damilola Akintoye; and DAMILOLA AKINTOYE (2) Whether Plaintiff has any basis to believe that Defend: 14544 Macbeth Drive continue to reside at or conduct business from the above li: Silver Spring, MD 20906 addresses. June 8, 2022 letter, Plaintiff also shall advise the Court as to whether Defendants Olubunmi Adeola Akintoye | African Stores were properly served with the summons and Complaint in this action pursuant to Federal Rule Procedure 4. Specifically, the Court directs Plaintiff to paragraphs 4 and 5 of the Complaint, which allege 1 fendant Olubunmi Adeola Akintoye resides at or conducts business from 455 Jackson Avenue and that Bumak Afri conducts business from 455 Jackson Avenue, Dkt. 7 9] 4-5, but these Defendants appear to have been served v summons and Complaint at the 14544 Macbeth Drive address, see Dkts. 17, 19. hearing on Plaintiff's motion for default judgment currently scheduled for June 17, 2022, at 1:00 p.m., is adjournec gust 4, 2022, at 11:00 a.m. 3 Vbf22 BE:11925713.1/CHA379-279055 Date: Tyne 2 9022 □□ □□