ROXANA BERENICE CASTRO AJMAD v. DWIGHT CRESCIONI (2024)

MEMORANDUM ORDER

Pending before the Court is plaintiff Roxana Berenice Castro Ajmad's letter-motion for an extension of time to serve by alternate means defendants Dwight Crescioni, Wellsure Corporation (“Wellsure”), Ranjit Hewavitarne, and FCB Commodites [sic] LLC (“FCB”). Dkt. No. 15.¹ Ajmad has filed supplemental letter briefing in support of the motion. Dkt. No. 18. For the following reasons, Ajmad's motion is granted.

Rule 4(e) of the Federal Rules of Civil Procedure provides that an individual located in the United States may be served pursuant to the law of the forum state or the state in which service is effected. Fed. R. Civ. P. 4(e)(1). Section 308 of the New York Civil Practice Law and Rules (“N.Y. C.P.L.R.”) provides that an individual may be served personally, by delivering the summons “to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served,” and “where service under [these methods] cannot be made with due diligence ․, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by mailing.” N.Y. C.P.L.R. §§ 308(1)–(2), (4). Section 308 also provides that if service is impracticable under any of the above methods, service may be made “in such manner as the court, upon motion without notice, directs[.]” Id. § 308(5). “Although Section 308(5) itself imposes no limits on the court's discretion in fashioning a method of service, due process requires that the method be reasonably calculated, under all the circumstances, to apprise the defendant of the action.” Caldwell v. City of New York, No. 21-CV-6560 (LJL) (SDA), 2022 WL 2292778, at *2 (S.D.N.Y. June 24, 2022) (citing, inter alia, Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).

By contrast, service on defendants abroad is ordinarily effected through the Hague Convention. In Re New Oriental Educ. & Tech. Grp. Inc. Sec. Litig., No. 22-CV-1014 (JHR), 2023 WL 5466333, at *1 (S.D.N.Y. Aug. 24, 2023) (citing Fed. R. Civ. P. 4(f)(1)). However, “[u]nder Rule 4(f)(3), a court may fashion means of service on an individual in a foreign country, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.” Grp. One Ltd. v. GTE GmbH, 523 F. Supp. 3d 323, 342 (E.D.N.Y. 2021) (cleaned up) (collecting cases). “[T]here is no hierarchy among the subsections in Rule 4(f).” Advanced Aerofoil Techs., AG v. Todaro, No. 11-CV-9505 (ALC), 2012 WL 299959, at *1 (S.D.N.Y. Jan. 31, 2012). “[S]ervice under the Hague Convention” is not required “before granting an order permitting alternative service under Rule 4(f)(3).” Id. at 341. To comport with due process, the means of service “must be ‘reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Ehrenfeld v. Salim a Bin Mahfouz, No. 04-CV-9641 (RCC), 2005 WL 696769, at *2 (S.D.N.Y. Mar. 23, 2005) (quoting Mullane, 339 U.S. at 314). “One factor in considering whether due process is satisfied is whether a defendant served by alternative means possesses some knowledge of the pending lawsuit against [them].” SEC v. Shehyn, No. 04-CV-2003 (LAP), 2008 WL 6150322, at *3 (S.D.N.Y. Nov. 26, 2008) (citing cases). Courts have “wide discretion” to fashion mechanisms for alternative service that meet these requirements. In re Terrorist Attacks on Sept. 11, 2001, No. 03-MD-1570 (GBD) (SN), 2023 WL 2966563, at *2 (S.D.N.Y. Apr. 17, 2023) (quoting Stream SICAV v. Wang, 989 F. Supp. 2d 264, 278 (S.D.N.Y. 2013) (cleaned up)).

Here, Ajmad has made several attempts to serve defendants and comply with the requirements of Rule 4 and Section 308. Ajmad's process server ABC Legal used skip tracing procedures as well as voter registration and motor vehicle record searches to attempt to locate valid and proper addresses for service. See Dkt. No. 13, at 2. Based on these searches, service on FCB Commodities LLC via its principal agent Tyrone Crescioni was attempted but unsuccessful. Id. Additionally, Ajmad has been unable to obtain valid addresses for defendants Dwight Crescioni, Ranjit Hewavitarne, and Wellsure Corporation, the last two of which reside in the United Kingdom. See id.; see also id. at 4–6 (Process Server Affidavit). Ajmad also previously requested an extension of time to serve defendants, which was granted to December 22, 2023. Dkt. Nos. 13–14. Ajmad has since retained a private investigator, Beau Dietl & Associates, see Dkt. No. 15 at 1–2, who, according to the investigative report provided to the Court, was also unable to find direct contact information for Dwight and Tyrone Crescioni. See Dkt. No. 15-1. Ajmad thus proposes two means of alternative service on defendants: publication in newspapers in the locale of defendants and/or service via defendants’ social media accounts. See Dkt. No. 15, at 1.

Addressing first Ajmad's request to serve defendants by publication, courts in this District have acknowledged that service by publication is acceptable where “the defendant is likely to read the newspaper in which the notice is published.” Ryzhov v. Malofeyev, No. 23-CV-1072 (JMF), 2023 WL 6162823, at *2 (S.D.N.Y. Sept. 21, 2023) (citation omitted). They have denied application for substitute service by publication, however, where plaintiffs failed to provide any details about the newspapers or media outlets where they intended to publish notice. See, e.g., id. at *3 (citing SEC v. China Intelligent Lighting & Elecs., Inc., No. 13-CV-5079 (JMF), 2014 WL 338817, at *1 (S.D.N.Y. Jan. 30, 2014) (denying motion for proposed service by publication where plaintiff failed to include facts establishing publication would reach defendant)). In the present case, while Ajmad has stated that she intends to serve by publication in newspapers where defendants are located, she has not provided any specifics as to the newspapers in which she intends to publish notice. Given Dwight and Tyrone Crescioni have been linked to addresses in the Bronx, Manhattan, and Queens, New York; as well as Scottsdale, Arizona; and Puerto Rico, see Dkt. No. 15, at 3, and Hewavitarne and Wellsure Corporation are located in the United Kingdom, more information would be needed for service by publication alone to be proper under this District's case law. See, e.g., Caldwell, 2022 WL 2292778, at *2 (noting “[s]ervice by publication in a newspaper is the least likely to be efficacious in conveying actual notice” and “[p]ublication alone ․ seldom pass[es] muster as an appropriate method of service under [N.Y. C.P.L.R. §] 308(5)”).

As a second means of service, plaintiff proposes service through defendants’ social media accounts. Specifically, plaintiff proposes service via Dwight Crescioni's Instagram account and Tyrone Crescioni's LinkedIn account. See Dkt. No. 15, at 2. Courts in this District have acknowledged that “service via known social media accounts is permissible.” In re Bibox Grp. Holdings Ltd. Sec. Litig., No. 20-CV-2807 (DLC), 2020 WL 4586819, at *2 (S.D.N.Y. Aug. 10, 2020) (citation omitted); but see, e.g., Nochimson v. Oasis Luxe Mgmt. & Co. Inc., No. 22-CV-7197 (PAE) (SLC), 2023 WL 2403260, at *2 (S.D.N.Y. Mar. 8, 2023) (denying motion for alternative service via social media where plaintiff did not provide “any evidence that service on [defendant] via [his] Social Media Platform would apprise [the defendant] of the pendency of the action and afford him an opportunity to present his objections” (cleaned up) (citing Mullane, 339 U.S. at 314)). While plaintiff has not proffered any evidence indicating that Dwight or Tyrone Crescioni in fact uses the two identified social media accounts (indeed, the investigative report only “reveal[ed] a possible LinkedIn account for Tyrone Crescioni”), see Dkt. No. 15, at 2 (emphasis added), service on these two accounts combined with service by publication may be sufficient provided that plaintiff can show that this would give notice to defendants of the action. Ajmad's request for an extension of time to serve defendants either by newspaper publication or via Instagram and LinkedIn is thus granted, although the Court makes no conclusions at this stage as to whether her proposed service would comport with due process. The record needs to be more fully developed before the Court can determine whether service by alternative means was adequate.

In sum, the request for an extension to effect service is granted for an additional 90 days from the date of this Order. Additionally, within one week of serving defendants, Ajmad shall file proof of such service with the Court.

The Clerk of Court is respectfully directed to close the motion at docket entry number 15 and mark it as “granted.”

SO ORDERED.

FOOTNOTES

1.   Judge Broderick referred this case to me for general pretrial supervision, including the pending motion, on December 22, 2023. Dkt. No. 16.

JAMES L. COTT United States Magistrate Judge