Ardis Health, LLC et al v. Nankivell

Filing 13

DECLARATION of Ashleigh Nankivell in Support re: 9 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Ashleigh Nankivell. (Auster, Gail)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------------------)(
ARDIS HEALTH, LLC; CURB YOUR CRAVINGS, LLC
And USA HERBALS, LLC,
Index No. 11 Civ 5013
Plaintiff,
DECLARATION of
ASHLEIGH
NANKIVELL
- againstASHLEIGH NANKIVELL,
Defendant.

-------------------------------------------------------------------------}(
I, Ashleigh Nankivell, pursuant to 28 U.S.C. § 1746, declare that:

1. I am the defendant in the above captioned action and I submit this declaration in
support of the Motion to Dismiss the Summons and Complaint for insufficient
servIce.
2. I reside at 114 Troutman Street, Apt. 428, Brooklyn, NY 11206.
3. I have never been employed byPlaintiff Ardis Health, LLC and I have not been
employed by Plaintiff Curb Your Cravings since 2009.
4. I have reviewed the Affidavit of Attempted Service of Joseph Sanchez ("Sanchez
Affidavit") dated August 4, 2011 submitted by Plaintiffs as evidence of proof of
attempted service of the Summons and Complaint upon me and the contents
thereof contain false statements.
5. The Sanchez Affidavit states that on July 29,2011, at approximately 9:05 p.m.,
Joseph Sanchez ("Sanchez") attempted to serve me with the Summons and

Complaint and other papers upon me by ringing the bell for apartment # 428 but
did not receive an answer. However, he did not ring the bell for my apartment as
I was home at this time and my boyfriend was home and no one rang my bell or
attempted to serve me in any manner.
6. The Sanchez Affidavit further states that on July 30, 2011 at approximately 4:39
p.m., Sanchez attempted to serve a copy of the Summons and Complaint by
ringing the bell for my apartment and briefly spoke to a woman over the intercom.
I did not speak to anyone who called me on the intercom on July 30, 2011.
7. The Sanchez Affidavit further claims that Sanchez told the woman over the
intercom that he had a delivery for Ashleigh Nankivell and that she buzzed him
into the building. I did not buzz him into the apartment building. If someone
from another apartment buzzed him in, it was not me.
8. The Sanchez Affidavit further claims that when Sanchez went to the apartment
door she would not open the door or even answer him. On that same date, a
stranger came to my door and refused to identify himself other than to say that he
had a delivery. All deliveries go to the package room except for food deliveries,
and I knew I had not ordered in food. There had recently been about 4 burglaries
in my apartment building so without further information, I did not open my door.
9. I have reviewed the Affidavit of Service of Randy Barona ("Barona Affidavit")
dated August 4, 2011 submitted by Plaintiff as evidence of proof of service of the
Summons and Complaint upon me and the contents thereof contain false
statements.

10. The Barona Affidavit states that on 8/2/11, at approximately 7: 17 p.m., Randy
Barona ("Barona") attempted to serve me with the Summons and Complaint by
ringing the bell for the apartment but did not receive an answer. However, he did
not ring the bell for my apartment as my boyfriend was home at that time and he
has informed me that no one rang my apartment bell on that evening.
11. The Barona Affidavit further states that on August 3, 2011 at approximately 11: 10
a.m., Barona attempted to serve a copy of the Summons and Complaint by ringing
the bell for my apartment and later knocked on my door but did not receive an
answer. However, he did not ring the bell for my apartment, and I was working at
home at this time doing some freelance work and no one rang my bell except for
two food deliverymen; moreover, no one knocked on the door.
12. The Barona Affidavit further states that on August 3, 2011 at approximately 11: 10
a.m. Barona personally affixed a copy of the Summons; Complaint and other
papers to the door of apartment # 428. However, nothing was affixed to the door
of my apartment, nor did I observe tape, glue, nails, staples, Velcro or any other
material that would or could be used to affix the papers to the door of my
apartment.
13. Plaintiffs Curb Your Cravings and USA Herbals, along with Jordan Finger, who
upon information and belief is the owner of both of these plaintiffs, have engaged
in a pattern and practice of false claims, including misleading claims of "free
trials" of products. A copy of the Better Business Bureau ("BBB") report of these
two businesses, which the BBB has linked together and have been given a grade
of"F" on a scale of A+ to F, is attached hereto as Exhibit 1.

14. If plaintiffs are pennitted to flaunt the rules regarding service of process through
such false statements, they would not only be rewarded for doing so by this Court
which would be contrary to public policy, but it would also reinforce their
continuation of false claims throughout this lawsuit.

For the foregoing reasons, I respectfully request that this Court dismiss plaintiffs
Summons and Complaint for insufficient service of process.

Dated: New York, NY
August 24, 2011

~
ASHLEIGH NANKIVELL

Sworn to this 24th day
of August, 2004.

r.

GAIL AUSTER

Notary PUblic, State of New York

No. 02AU6143461

QU~'jfj~d in New York County

CommissIon Expires April 10, 2014