Vazquez-Robles v. Commoloco, Inc.
Filing
59
OPINION AND ORDER re 49 Motion to Set Aside Judgment; and re 50 Motion to Stay. Because plaintiff Vazquez has met her burden of proving that service of process was sufficient, the Court DENIES defendant CommoLoCo's motion to set aside the j udgment as null and void for lack of personal jurisdiction, (Docket No. 49), as well as defendant CommoLoCo's motion to stay the execution of judgment, (Docket No. 50). It directs the United States Marshal to deliver to plaintiff Vazquez the funds and property seized pursuant to the writ of execution forthwith. Signed by Judge Francisco A. Besosa on 03/25/2013. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIBEL VAZQUEZ-ROBLES,
Plaintiff,
Civil No. 12-1600 (FAB)
v.
COMMOLOCO, INC.,
Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is the urgent motion for relief of judgment
as null and void for lack of personal jurisdiction,1 (Docket
No. 49), and the urgent motion to stay execution of judgment,
(Docket No. 50), filed by defendant CommoLoCo, Inc. (“CommoLoCo”).
Contending that the Court lacked personal jurisdiction over it on
the basis of improper service of process, defendant CommoLoCo
submits that the judgment entered on January 28, 2013 is null and
void.
In her motions in opposition, (Docket Nos. 55 & 56),
however, plaintiff
Maribel
Vazquez-Robles
claims
that
process
service was carried out correctly, and that therefore the Court’s
judgment must stand.
1
For the reasons discussed below, the Court
Defendant CommoLoCo requests relief pursuant to Federal Rule
of Civil Procedure 60(b)(4), which provides that “[o]n motion and
just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: . . . (4) the judgment is void . . . .”
Civil No. 12-1600 (FAB)
2
agrees with plaintiff Vazquez and DENIES defendant CommoLoCo’s
motions.
I.
BACKGROUND
On July 26, 2012, plaintiff Vazquez filed a complaint against
defendant CommoLoCo for disability discrimination and retaliation
pursuant to the Americans with Disabilities Act (“ADA”) and Title
VII of the Civil Rights Act of 1964.
issued
a
summons
on
July
27,
2012,
(Docket No. 1.)
(Docket
No.
The Clerk
3),
and
on
September 4, 2012, plaintiff Vazquez filed the executed summons,
(Docket No. 4 at p. 1).
The proof of service submitted with the
executed summons shows that on August 1, 2012 Mrs. Yma GonzalezMarrero (“Mrs. Gonzalez”), a process server, delivered the summons
and the complaint to “Prentice-Hall Corp. System Puerto Rico, Inc.,
as Resident Agent by conduct of Kenneth C. Bury as Representative,
who is designated by law to accept service of process on behalf of
CommoLoCo, Inc.”
(Docket No. 4 at p. 2.)
Defendant CommoLoCo
failed to appear, answer, or plea.
On September 5, 2012, the Clerk entered default against
defendant CommoLoCo, (Docket No. 7), and a default hearing was
conducted on January 25 and 28, 2013 before a jury, (Docket Nos. 35
& 36).
The jury rendered a verdict in favor of plaintiff Vazquez
for $935,000.00 on January 28, 2013, (Docket No. 39), and the Court
entered judgment on that date, (Docket No. 40).
On March 5, 2013,
the Court ordered the Clerk to issue a writ of execution addressed
Civil No. 12-1600 (FAB)
3
to the United States Marshal for the District of Puerto Rico,
commanding him to execute the judgment from CommoLoCo’s assets.
(Docket No. 48.)
Eight days later, the Marshal returned the writ
of execution as executed as to Banco Popular de Puerto Rico-Legal
Requirement Department for $935,000.00.
(Docket No. 53.)
On March 13, 2013, defendant CommoLoCo filed a motion to set
aside
the
judgment
as
null
and
void
for
lack
of
personal
jurisdiction, (Docket No. 49), as well as a motion to stay the
execution of the judgment, (Docket No. 50).
Defendant CommoLoCo
argues that service of process on it was insufficient as a matter
of law because neither Prentice-Hall nor Kenneth C. Bury were
defendant CommoLoCo’s resident agent or officer, administrative
manager, managing or general agent, or any other agent authorized
by appointment or law to receive service of process on defendant
CommoLoCo’s behalf at the time plaintiff Vazquez’s complaint was
filed.
(Docket No. 49 at p. 4.)
Rather, defendant CommoLoCo
contends that CT Corporation System has been its resident agent
since April 25, 2011.
Id. at p. 2.
To support its proposition, defendant CommoLoCo submits a
statement under penalty of perjury by Brad A. Chapman, Assistant
General Counsel of Springleaf Finance, Inc., which is the ultimate
parent of CommoLoCo, as well as a copy of the Change of Resident
Agent form certified by the Secretary of State of the Commonwealth
of Puerto Rico, dated April 25, 2011, which indicates that CT
Civil No. 12-1600 (FAB)
4
Corporation System in CommoLoCo’s resident agent. (Docket No. 49-1
at p. 2.)
Without proper service on the corporation through its
correct resident agent, defendant CommoLoCo argues, the subsequent
judicial proceedings before this Court are invalid for lack of in
personam jurisdiction over it.
Id.
Consequently, defendant
CommoLoCo contends that the judgment is null and void, and seeks
the return of the funds that were placed in the custody of the
Marshal pursuant to the writ of execution.
Id. at p. 5.
Plaintiff Vazquez responded on March 18, 2013, submitting an
unsworn statement under penalty of perjury by Mrs. Gonzalez.
statement
illustrates
how
Mrs.
Gonzalez
determined
The
defendant
CommoLoCo’s resident agent for purposes of serving process on the
corporation on August 1, 2012.
(Docket No. 55.)
Mrs. Gonzalez
first searched the Puerto Rico State Department’s official website,
specifically its “Online Corporation” website, for the resident
agent of CommoLoCo, Inc. on July 31, 2012. (Docket No. 55 at p. 3;
Docket No. 55-1 at p. 2.)
resident agent:
The search result revealed only one
“Prentice-Hall Corp System Puerto Rico Inc.”
Id.
Mrs. Gonzalez then reviewed CommoLoCo’s Annual Report for the year
2011 to confirm Prentice-Hall as the resident agent.
She found
that on June 13, 2012, in its Annual Report, defendant CommoLoCo
had reported only one resident agent:
Puerto Rico, Inc.
p. 2.)
Prentice-Hall Corp. System
(Docket No. 55 at p. 4; Docket No. 55-1 at
She also placed a telephone call to Fiddler Gonzalez &
Civil No. 12-1600 (FAB)
5
Rodriguez (“FGR”), where the Puerto Rico State Department website
showed
Prentice-Hall
to
have
an
address,
and
confirmed
Prentice-Hall was indeed CommoLoCo’s resident agent.
55 at p. 4; Docket No. 55-1 at pp. 2–3.)
that
(Docket No.
Mrs. Gonzalez learned
through her phone conversation that Prentice-Hall was authorized to
receive CommoLoCo summonses and that she would need to serve
process
through
Administrator.
Kenneth
C.
Bury,
who
is
FGR’s
General
(Docket No. 55-1 at p. 3.)
On August 1, 2012, Mrs. Gonzalez visited FGR’s offices located
at BBVA Tower, 254 Muñoz Rivera Avenue, 6th Floor, San Juan, Puerto
Rico—the address listed on the Puerto Rico State Department’s
website as Prentice-Hall’s street and mailing address—and spoke to
Mr. Bury.
Mr. Bury “specifically confirmed” to Mrs. Gonzalez that
“Prentice was CommoLo[C]o’s resident agent, and that [she] could
serve process thru [sic] him as representative of Prentice.”
(Docket No. 55-1 at p. 3.)
Mrs. Gonzalez then delivered a copy of
the complaint and the executed summons to Mr. Bury, and in return
she received his business card showing that he is the “General
Administrator” of FGR.
Id.; Docket No. 55-5.
Plaintiff Vazquez maintains that Prentice-Hall continues to be
listed as defendant CommoLoCo’s resident agent even today.
For
purposes of responding to defendant CommoLoCo’s recent motions,
Mrs. Gonzalez conducted another online search of the Puerto Rico
State Department’s online corporations website, and found that
Civil No. 12-1600 (FAB)
6
Prentice-Hall was still listed as CommoLoCo Inc.’s resident agent
as of March 13, 2013.
after
personally
(Docket No. 55-1 at p. 4.)
visiting
the
State
Department’s
Furthermore,
office
and
reviewing the public-digital file, Mrs. Gonzalez confirmed that
there was no amendment or change to defendant CommoLoCo’s resident
agent during the time period at issue in this case.
II.
Id.
DISCUSSION
A.
Standard
Service of process is the method through which a court
may acquire personal jurisdiction over a defendant; without proper
service, a court may not exercise power over a party the complaint
names as defendant.
See Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999) (“Before . . . a court
may exercise personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied.”) (internal
citation
omitted).
Federal
Rule
of
Civil
Procedure
4(h)(1)
provides for two methods of service to a corporation within a
judicial
district
of
the
United
States:
(A)
in
the
manner
prescribed by Rule 4(e)(1)2 for serving an individual; or (B) by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized
2
Rule 4(e)(1) states that a defendant may be served by
“following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district
court is located or where service is made.” Fed. R. Civ. P. 4(e).
Civil No. 12-1600 (FAB)
7
by appointment or by law to receive service of process and--if the
agent is one authorized by statute and the statute so requires--by
also mailing a copy of each to the defendant.
Fed. R. Civ.
P. 4(h)(1).
Two relevant sources of Puerto Rico law govern service of
process upon a corporation.
First, Puerto Rico Rule of Civil
Procedure Rule 4.4(e), which closely mirrors Federal Rule 4(h)(1),
states that a corporation may be served “by delivering a copy of
the summons and of the complaint to an officer, managing or general
agent, or to any other agent authorized by appointment or designed
by law to receive service of process.”
Second, the General
Corporations Act provides:
Service of legal process upon any corporation of the
Commonwealth shall be made by delivering a copy
personally to any officer or director of the corporation
in the Commonwealth, or the resident agent of the
corporation in the Commonwealth, or by leaving it at the
dwelling house or usual place of abode in the
Commonwealth of any officer, director or registered agent
(if the registered agent be an individual), or at the
registered office or other place of business of the
corporation in the Commonwealth. If the registered agent
be a corporation, service of process upon it as such
agent may be made by serving, in the Commonwealth, a copy
thereof on the president, vice-president, secretary,
assistant secretary or any director of the corporate
registered agent.
P.R. Laws Ann. tit. 14, § 3781 (2009).
“A return of service generally serves as prima facie
evidence that service was validly performed.”
Blair v. City of
Worcester, 522 F.3d 105, 111 (1st Cir. 2008).
A defendant may
Civil No. 12-1600 (FAB)
8
overcome the presumption, however, and the First Circuit Court of
Appeals has indicated that an affidavit denying agency, standing
alone, may suffice to overcome the presumption of proper service
created by the return of service.
Id. at 112.
When a defendant
challenges service of process, the burden then shifts to the
plaintiff to show that service was sufficient.
Rivera-Lopez v.
Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992) (“[O]nce
challenged, plaintiffs have the burden of proving proper service.”)
B.
Analysis
The proof of service plaintiff filed with the executed
summons and which was signed by Mrs. Gonzalez states, in relevant
part, that Mrs. Gonzalez “served the summons on Prentice-Hall Corp
System Puerto Rico, Inc. as Resident Agent, by conduct of Kenneth
C. Bury as Representative, who is designated by law to accept
service of process on behalf of CommoLoCo, Inc.”
p. 2.)
(Docket No. 4 at
The language of the proof of service seems designed to
indicate service of an agent under Fed. R. Civ. P. 4(h)(1) and P.R.
R. Civ. P. 4.4(e).
Whether or not this proof of service qualifies as prima
facie evidence, defendant CommoLoCo has adduced sufficient rebuttal
evidence in its motions to refute a presumption of valid service.
See Blair, 522 F.3d at 111–12.
Brad A. Chapman, Assistant General
Counsel of Springleaf Finance, Inc., submitted a statement under
penalty of perjury that “since April 25, 2011, and at present,
Civil No. 12-1600 (FAB)
9
CommoLoCo, Inc.’s resident agent has been CT Corporation System, .
. . and not Prentice-Hall and/or Kenneth C. Bury.”
1 at p. 2.)
(Docket No. 49-
He further claims that “[o]n November 4, 2010, by
means of a Unanimous Written Consent of The Board of Directors of
CommoLoCo, Inc., it was resolved that the registered agent for
CommoLoCo, Inc., be changed from Prentice-Hall Corporation System
of Puerto Rico, Inc. c/o FGR Corporate Services, Inc. to CT
Corporation System.”
Id.
According to Mr. Chapman, “[o]n April
25, 2011, at 11:33 a.m., the Puerto Rico Secretary of State
[c]ertified the [c]hange of resident agent from Prentice Hall to CT
Corporation System.”
Id.
“Let it be known that at the time the
Complaint in the captioned case was filed and the Summons were
[sic] executed, Prentice Hall and/or Kenneth C. Bury were not
resident
managers,
agents,
general
officers,
agents,
managing
agents,
administrative
registered
agents,
or
any
agent
authorized by appointment or designated by law to receive service
on process on behalf of CommoLoCo.”
Id.
Mr. Chapman’s statement
appears to rebut any presumption that might have arisen from the
proof of service executed by Mrs. Gonzalez and filed on September
4, 2012.
See Blair, 522 F.3d at 112.
The burden of proving proper
service, therefore, shifts to plaintiff Vazquez.
See id. (citing
Rivera-Lopez, 979 F.2d at 887).
The Court finds, however, that plaintiff Vazquez has met
her burden of proving that service of process was sufficient.
In
Civil No. 12-1600 (FAB)
10
her opposition, plaintiff Vazquez refutes Mr. Chapman’s statements
by including a statement by her process server, Mrs. Gonzalez,
under
penalty
of
perjury.
Mrs.
Gonzalez’s
representations
establish that her method of service–handing a copy of the summons
and complaint to Mr. Bury at FGR–was legally sufficient.
When she
initially searched the Puerto Rico State Department’s website for
the
resident
agent
of
CommoLoCo,
Inc.
on
July
31,
2012,
Mrs. Gonzalez found that the website revealed only one resident
agent: “Prentice-Hall Corp System Puerto Rico Inc.” Mrs. Gonzalez
confirmed this information by reviewing CommoLoCo’s Annual Report
for the year 2011, and again found that on June 13, 2012 defendant
CommoLoCo had reported only one resident agent: Prentice-Hall Corp.
System Puerto Rico, Inc.
Mrs. Gonzalez then followed up via
telephone with FGR, where Prentice-Hall was shown to have an
address,
and
confirmed
that
Prentice-Hall
indeed
served
as
CommoLoCo’s resident agent and was authorized to receive CommoLoCo
summonses through Mr. Bury.
offices
Mr.
on
Bury,
August
who
1,
2012,
“specifically
Finally, when she visited FGR’s
Mrs.
Gonzalez
confirmed”
spoke
that
directly
“Prentice
to
was
CommoLo[C]o’s resident agent, and that [Mrs. Gonzalez] could serve
process [through] him as representative of Prentice.”
(Docket
No. 55-1 at p. 3.)
Furthermore, the Court finds Mrs. Gonzalez’s statement
credible
because
convincing
evidence
exists
to
support
her
Civil No. 12-1600 (FAB)
contention
that
11
Prentice-Hall
is
still
defendant
CommoLoCo’s
resident agent today. As of the date of this memorandum and order,
the Puerto Rico State Department’s corporations website still lists
CommoLoCo’s resident agent as “Prentice-Hall Corp System Puerto
Rico Inc.” and provides FGR’s mailing and street address, where
Mrs. Gonzalez personally served Mr. Bury.
DEP’T.
OF
STATE,
Corporation
See COMMONWEALTH OF P.R.
Information:
CommoLoCo,
Inc.,
https://prcorpfiling.f1hst.com/CorpInfo/CorporationInfo.aspx?c=47
099-111 (last visited Mar. 25, 2013). Mr. Chapman’s statement that
“since April 25, 2011, and at present, CommoLoCo, Inc.’s resident
agent has been CT Corporation System,” therefore, is unreliable.
Defendant CommoLoCo understandably seeks to avoid the
default judgment of $935,000.00 entered against it, but its grounds
for doing so—based on the Court’s lack of personal jurisdiction
over it—appears to be little more than a grasp at straws and is
wholly unconvincing in light of what Mrs. Gonzalez indicates in her
statement that she did to confirm CommoLoCo’s resident agent.
Mr. Chapman
Prentice-Hall
has
failed
and/or
Mr.
to
offer
Bury
any
were
realistic
not
evidence that
defendant
CommoLoCo’s
resident agents; given that the Puerto Rico State Department’s
website still lists Prentice-Hall as CommoLoCo’s resident agent
today, it can not seriously be argued that Mrs. Gonzalez’s service
of
process
insufficient.
on
Prentice-Hall
through
Mr.
Bury
at
FGR
was
Accordingly, the Court finds that its judgment
Civil No. 12-1600 (FAB)
12
entered January 28, 2013 is not null and void for lack of personal
jurisdiction over defendant CommoLoCo, and it declines to set aside
the writ of execution of judgment.
III. CONCLUSION
Because plaintiff Vazquez has met her burden of proving that
service of process was sufficient, the Court DENIES defendant
CommoLoCo’s motion to set aside the judgment as null and void for
lack
of
personal
jurisdiction,
(Docket
No.
49),
as
well
as
defendant CommoLoCo’s motion to stay the execution of judgment,
(Docket No. 50).
It directs the United States Marshal to deliver
to plaintiff Vazquez the funds and property seized pursuant to the
writ of execution forthwith.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 25, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?