Stafford v. GenExel-Sein, Inc.
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
This case was reassigned to Judge William M. Conley pursuant to a March 31, 2010 administrative
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
KTIC remains open to challenge this theory by a motion to quash service.
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
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?