Vazquez-Robles v. Commoloco, Inc.

932 F.Supp.2d 259

Maribel VAZQUEZ–ROBLES, Plaintiff,

v.COMMOLOCO, INC., Defendant.

Civil No. 12–1600 (FAB).

United States District Court, D. Puerto Rico.

March 25, 2013.

Graciela J. Belaval–Bruno, Martinez Odell & Calabria, Alejandro Bellver–Espinosa, Bellver Espinosa Law Firm, San Juan, PR, for Plaintiff.

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. For the reasons discussed below, the Court 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. (Docket No. 1.) The Clerk issued a summons on July 27, 2012, (Docket No. 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 Gonzalez–Marrero (“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 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 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. The statement illustrates how Mrs. Gonzalez determined 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.) The search result revealed only one resident agent: “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: Prentice–Hall Corp. System Puerto Rico, Inc. (Docket No. 55 at p. 4; Docket No. 55–1 at p. 2.) She also placed a telephone call to Fiddler Gonzalez & Rodriguez (“FGR”), where the Puerto Rico State Department website showed Prentice–Hall to have an address, and confirmed that Prentice–Hall was indeed CommoLoCo's resident agent. (Docket No. 55 at p. 4; Docket No. 55–1 at pp. 2–3.) 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 Kenneth C. Bury, who is FGR's General Administrator. (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 Prentice–Hall was still listed as CommoLoCo Inc.'s resident agent as of March 13, 2013. (Docket No. 55–1 at p. 4.) Furthermore, after personally visiting the State Department's 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. Id.

II. DISCUSSIONA. 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, 119 S.Ct. 1322, 143 L.Ed.2d 448 (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 by appointment or by law to receive service of processand—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 overcome the presumption, however, and the First Circuit Court of Appeals has indicated that an affidavit...