JAIN v. S1 BIOPHARMA, CO. et al
Filing
6
OPINION AND ORDER denying 5 Plaintiff's Motion for Service by Publication without prejudice. Signed by Magistrate Judge James B. Clark on 10/24/2024. (jd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PRABHASH JAIN,
Plaintiff,
Civil Action No. 24-924 (CCC)
OPINION AND ORDER
v.
S1 BIOPHARMA, CO, et al.
Defendants.
CLARK, Magistrate Judge
THIS MATTER comes before the Court on a motion by Plaintiff Prabhash Jain
(“Plaintiff”) for Alternative Service on Defendants S1 Biopharma, Co. (“S1”) and Trinet HR II,
Inc. (“Trinet”) (collectively, “Defendants”) [Dkt. No. 5]. The Court has carefully considered the
relevant submissions and decides the matter without oral argument pursuant to Local Civil Rule
78.1. For the reasons set forth below, Plaintiff’s motion [Dkt. No. 5] is DENIED without
prejudice.
I.
BACKGROUND
On February 19, 2024, Plaintiff filed this action against Defendants S1 and Trinet.
Dkt. No. 1. This case arises out of Defendants’ alleged failure to pay Plaintiff approximately
$300,000 in wages earned by Plaintiff during his seven-year employ with Defendant S1. See
generally id. Plaintiff was employed by S1 from March 2014 until June 2021 as a support and
finance manager, and served in varying full and part-time capacities. Id. ¶¶ 14-15, 30, 44, 52, 58.
Defendant Trinet served as S1’s human resources vendor during the relevant period. Id. ¶ 27.
Plaintiff sues to recover wages allegedly owing and due under breach of contract and unjust
enrichment theories (Counts One and Five), and further alleges violations of the Fair Labor
Standards Act (“FLSA”) (Count Two), Title VII of the Civil Rights Act of 1964 (“Title VII”) and
New Jersey Law Against Discrimination (“LAD”) (Count Three), and New Jersey Conscientious
Employee Protection Act (“CEPA”) (Count Four). Id. at p. 10-16. Nearly three months after filing
the Complaint, Plaintiff made an initial attempt at serving Defendants and was not successful. See
Dkt. Nos. 1, 5. As a result, Plaintiff now seeks leave to serve Defendants through alternative
methods of service, requesting that he be permitted to serve Defendant S1 via email and Defendant
Trinet via facsimile. Pl.’s Moving Br. at 1, Dkt. No. 5. Plaintiff’s attorney, Clifford D. Dawkins,
Esq. (“Dawkins”), filed an affidavit (the “Dawkins Affidavit”) in support of the present motion.
Dkt. No. 5-1.
II.
DISCUSSION
Federal Rule of Civil Procedure 4(h) provides the framework for service of process on
corporations. Service upon a domestic corporation may be effectuated in one of two ways:
[First] in the manner prescribed by Rule 4(e)(1) for serving an
individual; or
[second] by delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of process[.]
Fed. R. Civ. P. 4(h). As for the first method, Rule 4(e)(1) provides that an individual may be served
within a judicial district of the United States by following the law of the state in which the district
court is located. Fed. R. Civ. P. 4(e)(1). In New Jersey, personal service is the primary and
preferred method for serving individuals and corporate defendants within and outside the state.
See N.J. Ct. R. 4:4-4(a); N.J. Ct. R. 4:4-4(a)(6). Service upon a corporation is traditionally effected
by “serving a copy of the summons and complaint [to the individual personally] on any officer,
director, trustee or managing or general agent . . . .” N.J. Ct. R 4:4-4(a)(6). New Jersey Court
Rules, however, allow for substitute or constructive service when personal service cannot be
accomplished. See N.J. Ct. R. 4:4-4(b). “For in personam jurisdiction, New Jersey Court Rule 4:44(b) provides the methods of substitute or constructive service, such as personal service outside
the state, simultaneous mailings by ordinary and certified (or registered) mail, and ‘as provided by
court order, consistent with due process of law.’” H.D. Smith, LLC v. Prime Rite Corp., No. 16294, 2016 WL 3606785, at *1 (D.N.J. July 5, 2016) (citations omitted). “Regardless of the type of
action, substitute or constructive service requires a demonstration of due diligence that satisfies
the requirements specified in New Jersey Court Rule 4:4-5(b).” Id. (citations omitted).
“There is no objective formulaic standard for determining due diligence, the court must
instead assess diligence by performing a fact-sensitive inquiry of the qualitative efforts of a
specific plaintiff seeking to locate and serve a specific defendant.” Truist Bank v. Elgeo Corp., 241533, 2024 WL 3898038, at *3 (D.N.J. Aug. 22, 2024) (citing Modan v. Modan, 327 N.J. Super.
44, 48 (App. Div. 2000)). “Diligence requires that a plaintiff follow up on information it possesses
or can reasonably obtain, but it does not necessarily mean a plaintiff take every conceivable
action.” H.D. Smith, LLC, 2016 WL 3606785, at *2 (citing Modan, 327 N.J. Super. at 48-49).
In addition, “[t]he diligence exercised and the alternative service requested must meet the
constitutional requirements of due process.” HD Smith, LLC, 2016 WL 3606785, at *2 (citation
omitted). Namely, “[t]he proposed method of service must provide notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Grange Ins. Co. v. Hankin, No. 21-11928, 2022
WL 855694, at * 4 (D.N.J. Mar. 23, 2022) (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339
U.S. 306, 314 (1950)) (internal quotations omitted).
A. Due Diligence
As a threshold matter, Plaintiff has not shown due diligence in attempting to serve
Defendants. While Plaintiff took some steps towards effectuating service, primarily for Defendant
S1, Plaintiff’s lukewarm efforts to locate and serve Defendants do not constitute due diligence.
Here, Plaintiff twice attempted service upon Defendant S1, once at S1’s publicly listed physical
address in New York and once at S1’s physical offices in Maryland. Dawkins Aff. ¶¶ 8-13;
Dawkins Aff., Exs. B-C, Dkt. Nos. 5-3-5-4. Plaintiff likewise directed a third-party process server
to serve Defendant Trinet at its physical address in California. Id., Ex. D, Dkt. No. 5-5. All three
of Plaintiff’s attempts to serve Defendants through a third-party process server were rebuffed. See
id., Exs. B-D. Plaintiff’s third-party process servers state that S1 has moved from its New York
office, and that Trinet rejected service at its California address. Id. Plaintiff was unable to contact
counsel for S1 and further concluded that in-state personal service could not be accomplished
since, according to Plaintiff, Defendants1 do not have registered agents within the State. Id. ¶¶ 67, 14.
Despite Plaintiff’s efforts, it is not clear from the record that Plaintiff has exercised all
available means of effectuating service under New Jersey Court Rule 4:4-4(a), and consequently
Federal Rule of Civil Procedure 4(h). Thus, because due diligence is lacking, substitute service
upon Defendants is not appropriate at this juncture. Before constructive or substituted service may
occur, Plaintiff must first attempt personal service upon Defendants’ directors, officers or agents.
See N.J. Ct. R. 4:4-4(b)(3) (providing that service by court order is available only where “service
cannot be made by any of the modes provided by [N.J. Ct. R. 4:4-4]”); see also Fed. R. Civ. P.
The meaning of “Defendants” in the Dawkins Affidavit appears to refer interchangeably to
Defendant S1, individually, and to Defendants S1 and Trinet, collectively. For purposes of this
motion, the Court assumes “Defendants” references S1 and Trinet collectively.
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4(h)(1)(B); N.J. Ct. R. 4:4-4(a)(6) (authorizing personal service upon a corporation’s officers,
directors and managing or general agents). The Complaint names two directors of Defendant S1,
Chief Executive Officer, Nicolas G. Sitchon, and Chief Financial Officer (“CFO”), John F.
Kaufman (“Kaufman”)—but Plaintiff’s counsel’s supporting affidavit is devoid of any indication
that personal service upon those S1 directors was attempted. Compl. ¶¶ 15, 18; see generally
Dawkins Aff. Nor was the possibility of serving S1’s directors thoroughly investigated.2 Similarly
and regarding Defendant Trinet, Plaintiff’s one attempt at effectuating service through a thirdparty process server unequivocally falls short of the diligence required for substitute service.
Moreover, several other methods of serving Defendants are apparent to this Court, such as,
repeated efforts to serve Defendants at their publicly listed addresses; requests to Defendants for
waivers of service in accordance with Federal Rule of Civil Procedure 4(d); or additional internet
research, through a private investigator, a search of court records or otherwise. Truist Bank is
illustrative. See, e.g., Truist Bank v. Elgeo Corp., 2024 WL 3898038, at *2, *4 (D.N.J. Aug. 22,
2024). There, the court granted in part plaintiff’s motion for alternative service after determining
that plaintiff’s “varied and numerous attempts to locate and personally serve [d]efendants”
constituted due diligence. Id. at *5. Truist Bank explored several avenues for serving defendants,
including using third-party process servers to attempt personal service upon defendants at least
nine times and at multiple addresses. Id. at *4. Truist Bank made additional attempts at locating
defendants by performing internet, social media and court records/PACER searches, and even
requested waivers of service of process from defendants. Id. at *2, *4. In sum, because the record
here does not clearly demonstrate that statutory methods of serving Defendants have proven
See Dawkins Aff. ¶ 7 (concluding plainly that Defendants “could [not] be personally served with
process in the State”).
2
ineffective, Plaintiff has not shown due diligence. Though denial of Plaintiff’s motion is warranted
on this ground alone, the Court turns next to concerns of due process.
B. Due Process
Even assuming Plaintiff has exercised due diligence, due process concerns provide a
further basis for denial of Plaintiff’s motion. Substitute service must be “consistent with due
process of law.” N.J. Ct. R. 4:4-4(b)(3); see also Marlabs Inc. v. Jakher, No. 07-4074, 2010 WL
1644041, at *3 (D.N.J. Apr. 22, 2010) (explaining that a proposed means of alternative service
must comport with constitutional notions of due process). Plaintiff argues that before filing this
action he and his former counsel “had several email communications with Defendant S1’s
Directors” and, as such, email is “a reliable method of reaching the Defendants and providing them
with notice.” Pl.’s Moving Br. at 5; Dawkins Aff. ¶¶ 4-5. In support of his argument, Plaintiff offers
a December 30, 2022 email from his former counsel to the business and personal email addresses
he claims are associated with S1’s CFO, Kaufman. See Dawkins Aff., Ex. A, Dkt. No. 5-2. That
correspondence concerns Plaintiff’s acceptance of a payment plan for the unpaid wages he claims
are owed. Id. As to Defendant Trinet, Plaintiff asserts that a facsimile number on Trinet’s website
is the most likely means of providing the requisite notice. Pl.’s Moving Br. at 5.
Courts in the Third Circuit have authorized service by email where the movant supplies
facts indicating that the person to be served is likely to receive the summons and complaint at the
given email address. See U.S. Sec. and Exch. Comm’n v. Vuuzle Media Corp., 21-1226, 2021 WL
1731947, at *3 (D.N.J. May 3, 2021) (citations omitted) (finding due process prong satisfied where
movant supplied recent communications, financial records and press releases as evidence of
defendant’s repeated and current usage of the suggested email address). Nevertheless, Plaintiff’s
offered evidence here falls short of the notice due process requires. A single unilateral email from
Plaintiff’s former counsel to a purported employee of S1, dating back more than a year before the
filing of this action, without more, is insufficient to verify the connection between Defendant S1
and the email addresses provided. See Dawkins Aff., Ex. A. Plaintiff has not demonstrated that
Kaufman actively uses the suggested email addresses, nor that Kaufman ever sent or received
communications relating to Plaintiff at the suggested email addresses. See Vaswani, Inc. v.
Manjunathamurthy, No. 20-20288, 2021 WL 1541071 at *3 (D.N.J. Apr. 19, 2021) (denying in
part plaintiff’s motion for alternative service where plaintiff provided “neither an official or
otherwise reliable source” that the email address in question was “[defendant’s] email address, nor
any proof that [defendant] actively uses it”). Therefore, service by email would not be reasonably
calculated to formally give Defendant S1 notice of this action. Vuuzle Media Corp., 2021 WL
1731947, at *3. For substantially the same reasons, service upon Defendant Trinet through
facsimile is not appropriate. Accordingly, for the reasons stated, the Court DENIES without
prejudice Plaintiff’s motion for alternative service as to Defendants.
III.
CONCLUSION AND ORDER
The Court having considered the papers submitted pursuant to Fed. R. Civ. P. 78, and for
the reasons set forth above;
IT IS on this 24th day of October 2024,
ORDERED that Plaintiff’s Motion for Alternative Service [Dkt. No. 5] is DENIED
without prejudice.
s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge
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