Knitwear et al v. Jung et al
Filing
22
MEMORANDUM OPINION AND ORDER re: 4 MOTION to Dismiss Defendant Ji Hoon Jung's Notice of Motion to Dismiss the Complaint, or, Alternatively, Compel Arbitration filed by Ji Hoon Jung. Jung has not been properly served. Accordingly, this case must be dismissed for lack of personal jurisdiction over the only defendant whom plaintiffs have apparently even attempted to serve. For the foregoing reasons, defendant Jung's motion to dismiss is GRANTED. The Clerk of the Court is directed to terminate this motion at docket no. 4 and to close this matter. (Signed by Judge Katherine B. Forrest on 12/28/2011) (mro)
USDCSDNY
DOCUMENT
ELECTRONICALLV FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC~~__~~~~~=II
DATE FILED: '.
8 DEC 2QU
11 Civ. 7434
(KEF)
--------------------------------------X
MEDAL KNITWEAR and HEE SOON WI,
Plaintiffs,
MEMORANDUM OPINION
& ORDER
-v-
JI HOON JUNG, STAR M CO., LTD.,
REVOLUTION KOREA, INC. and REVOLUTION
U. S . A., INC.,
Defendants.
------------ -------------------------x
KATHERINE B. FORREST, District Judge:
Plaintiff Hee Soon Wi and her company, Medal Knitwear,
commenced this action in New York state court in May 2011.
Defendant Ji Hoon Jung (\\Jung"), a professional entertainer, was
provided with the summons and complaint on or about September
22, 2011 via an entity who has acted as his "managing agency."
(Plaintiffs' Memorandum in Opposition at 7.)
Defendant Jung
properly removed this action to Federal Court pursuant to 28
U.S.C.
§
1332, on October 20, 2011.
There is no indication on
the docket that service was attempted or effected on either of
the three corporate defendants, Star M Co., Ltd., Revolution
Korea, Inc., and Revolution U.S.A., Inc.
None of the corporate
defendants have appeared in this action and plaintiffs have not
moved for a judgment of default against them.
Defendant Jung
has moved to dismiss this action on the bases that service has
not been properly effected on him and res judicata.
Alternatively, defendant Jung moves to compel arbitration of the
dispute.
For the reasons set forth below, defendant Jung's
motion to dismiss this action for improper service is GRANTED.
This Court therefore will not reach the remaining arguments
regarding res judicata or arbitrability.
DISCUSSION
Plaintiffs have attempted to serve defendant Jung through
JYP Entertainment Co. Ltd.
("JyplI).
They have utilized service
procedures available under both the Hague Convention in South
Korea and in New York under the provisions of the C.P.L.R.
(See
Plaintiffs' Memorandum in Opposition at 7; Declaration of Oscar
Michelin at Exhibits B and C.)
Plaintiffs do not contend that
they attempted or effected personal service upon defendant Jung
himself.
The key issue is therefore whether JYP--which merged
in February 2011 with J. Tune Entertainment (an entity that
according to plaintiffs was at one time Jung's agent)--is a
proper entity to accept process on behalf of Jung.
Plaintiffs argue that JYP has held itself out as Jung's
"agent" throughout the events underlying the complaint.
Acting
as an agent for one purpose does not allow or enable such agent
to accept service of process.
See Stormhale Inc. v Baidu.com,
Inc., 675 F. Supp. 2d 373,375 (S.D.N.Y. 2009)
(IIBaidu
designated CT Corp. as its agent to receive service of process
only for matters related to specific securities filings.
This
limited designation prevents Stormhale from properly serving
Baidu through CT Corp. II) •
There are no allegations in the
complaint or in any declarations submitted in connection with
this motion, that JYP was ever authorized or in fact acted as
more than a manager for Jung's entertainment career.
Under the
C.P.L.R., there are strict writing requirements for designation
of an agent to receive service of process.
See N.Y. C.P.L.R.
§
308(3), Rule 318; DeGroat v. Kralik, 638 N.Y.S.2d 716, 717 (N.Y.
App. Div. 1996)
(refusing to sustain service under Section
308(3) in absence of appointment pursuant to Rule 318).
"New York courts require strict compliance with the
provisions of the C.P.L.R. to perfect service."
McGann v. State
of New York, 77 F.3d 672, 674 n.S (2d Cir. 1996).
Strict
compliance is also required to effect service under the Hague
Convention.
See Gallagher v. Mazda Motor of Am., 781 F. Supp.
1079, 1081 (E.D. Pa. 1992)
("[Defendant] is entitled to insist
on strict compliance with [the Hague Convention's]
provisions.").
Thus, even assuming that JYP or J. Tune
Entertainment did at times act as an agent in the context of
Jung's entertainment career, that does not equate with having
actual authority to accept process on Jung's behalf.
Neither does it mean that JYP had apparent authority to
accept service for Jung.
Acting as a manager for Jung's
entertainment career cannot imbue JYP with the apparent
authority to accept service of process on defendant's behalf.
See Novak v. Nat'l Broad. Co., Inc., No. 88 Civ. 5380 (RWS) ,
1990 WL 16045, at *3 (S.D.N.Y. Feb. 9, 1990)
(finding that the
"talent agency" for the defendant did not have "any real or
apparent authority to accept service of process") .
Furthermore,
n[n]otice received by means other than those
authorized by statute does not bring a defendant within the
jurisdiction of the court"--i.e., it is therefore irrelevant
that Jung ultimately received a copy of the complaint as a
courtesy from JYP.
Macchia v. Russo, 67 N.Y.2d 592, 595 (N.Y.
1986) .
CONCLUSION
Jung has not been properly served.
Accordingly, this case
must be dismissed for lack of personal jurisdiction over the
only defendant whom plaintiffs have apparently even attempted to
serve.
For the foregoing reasons, defendant Jung's motion to
dismiss is GRANTED.
The Clerk of the Court is directed to
terminate this motion at docket no. 4 and to close this matter.
SO ORDERED:
Dated:
New York/ New York
December 28/ 2011
/s/ Katherine B. Forrest
KATHERINE B. FORREST
United States District Judge
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