Stafford v. GenExel-Sein, Inc.

Filing 14

ORDER directing plaintiff to submit proof of his claim against defendant by 5/20/10. Signed by District Judge William M. Conley on 5/7/10. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF WISCONSIN

D O U G L A S C. STAFFORD, Plaintiff, v. 09-cv-621-wmc1 G E N E X E L -S E IN , INC. d .b .a . KOREA TECHNOLOGY INDUSTRY CO., LTD, D efenda nt. ORD ER

O n October 9, 2009, plaintiff Douglas C. Stafford filed this civil action against defendant G e n E x e l-S e in , Inc. d.b.a. Korea Technology Industry Co., Ltd ("KTIC"), a South Korean c o r p o r a t i o n , seeking payment of salary and other compensation for work performed here in W is co n s in in 2009 pursuant to a contract signed in December of 2007. The case has not

p r o g r e s s e d since because plaintiff Stafford is proceeding pro se and has found it difficult to a cc o m p lis h service. In an October 23, 2009 order, Stafford was told that if he failed to submit proof of service o f his complaint on KTIC or explain his inability to do so by January 22, 2010, he would be d i r e c t e d to show cause why his case should not be dismissed for lack of prosecution. Stafford r e s p o n d e d to that order on March 4, 2009, (1) saying that he mailed waiver of service forms to K T I C but did not get a reply; and (2) submitting an amended complaint that contained no new a lle g a tio n s but added defendant Korea Technology Industry America ("KTIA"), a Utah company. I n a January 14, 2010 order, Stafford was directed to explain (1) why he added KTIA as a defendant and (2) how he planned on serving both defendants. Stafford responded that he a d d e d KTIA for the sole purpose of serving it as a wholly-owned subsidiary of KTIC pursuant to

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This case was reassigned to Judge William M. Conley pursuant to a March 31, 2010 administrative

ord er.

F e d . R. Civ. P. Rule 4(h)(1)(B) (service may be achieved by delivering copy of summons and c o m p la in t to agent of defendant) and Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 ( 1 9 8 8 ) (service of foreign corporation achieved by serving domestic subsidiary). Stafford also re q u e s te d leave to withdraw his amended complaint so he could serve KTIA with the original c o m p l a i n t , and for an extension of time to show diligence in obtaining service. Both requests were g r a n t e d in a February 5, 2010 order, giving him until March 5, 2010 to submit proof of service o f his original complaint on KTIC or explain his inability to do so. On March 4, 2010, Stafford submitted his response, stating that service was achieved by s e rv in g KTIA's registered agent, Oilsand Technology, LLC. An affidavit of service shows that S t a ff o rd had a police officer serve "Jungnee," the registered agent for service upon Oilsand T e ch n o l o gy . While this would be enough to show that Oilsand Technology has been served, that c o m p a n y is not the defendant in this case. Stafford provides no proof that service upon Oilsand T e ch n o l o gy accomplishes service upon defendant KTIC. His theory appears to be that KTIC can b e served by serving an agent (Jungnee) of an agent (Oilsand Technology) of an agent (KTIA) of K T I C . Assuming for the moment that this theory is correct,2 plaintiff has failed to show proof that O i l s a n d Technology is in fact an agent for KTIA or that KTIA is the agent of KTIC. Even more f u n d a m e n t a l ly , it appears from the complaint that Stafford's employment contract is with G e n E x e l-S e in , Inc., which "merged with" Korea Technology Industry, Co., Ltd. in May of 2009. D e p e n d i n g upon the nature of state and federal employment law and perhaps Korean corporate la w , this means Stafford may or may not have a valid claim against KTIC. F i n a l l y , this case is unusual in that it is unclear whether the 120-day time limit for service

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KTIC remains open to challenge this theory by a motion to quash service.

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u n d e r Fed. R. Civ. P. 4(m) applies. At the outset of the case, it appeared that Stafford was a tt e m p t in g to serve KTIC outside the United States, in which case the 120-day limit does not a p p l y . (Instead, a court may dismiss a neglectful plaintiff's case for failure to prosecute.) Now it a p p e a r s that Stafford seeks to serve KTIC in the United States, in which case the 120-day limit m a y only be extended upon a showing of good cause. Stafford's actions thus far indicate at least some cause to extend the time limit for service, b u t the court cannot indulge endless delays. Accordingly, plaintiff may have until May 20, 2010, t o submit such proof in his possession of his claim, including a copy of: (1) the December 20, 2 0 0 7 employment contract; (2) payments made under that contract through December 31, 2008; ( 3 ) any written commitment to $81,000 for an early termination of the contract; (4) an April 27, 2 0 0 9 email message from GenExel-Sein promising to wire that amount; (5) documents reflecting t h e nature of the merger between GenExel-Sein and Korea Technology Industry, Co., Ltd.; (6) le ga l record showing Oilsand is the agent for service for KTIA; and, (7) legal record showing KTIA is the wholly-owned subsidiary of KTIC.

ORD ER I T IS ORDERED that Plaintiff Douglas C. Stafford will have until May 20, 2010 to submit t o this court proof in his possession of his claim against defendant as set forth above. E n t e re d this 7 th day of May, 2010. B Y THE COURT: /s / __________________________________ W I L L I A M M. CONLEY D is tric t Judge

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