United States District Court, W.D. Missouri, Western Division
ORDER DENYING DEFENDANT PAUL AMELIO'S MOTION TO
KAYS, JUDGE, UNITED STATES DISTRICT COURT
case arises from an alleged scheme to defraud a group of
investors. Plaintiffs, a limited liability company and eight
individual investors based in Kansas City, Missouri,
allege the Defendants, who are based in the New York area,
engaged in fraud, misrepresentation, breach of fiduciary
duty, and breach of contract by failing to disclose crucial
information, embezzling from the company, and providing
before the Court is pro se Defendant Paul Amelio's
(“Amelio”) Motion to Dismiss Plaintiff's
Second Amended Complaint (Doc. 81). Amelio, a co-founder of
Defendant N2 Global Solutions, Inc. (“N2
Global”), moves to dismiss on three independent
grounds: improper venue, improper service of process, and
lack of personal jurisdiction. These arguments are without
merit, and the motion is DENIED.
Even if valid, the forum selection clause does not justify
argues the case should be dismissed pursuant to 28 U.S.C.
§ 1406(a), and presumably Federal Rule of Civil
Procedure 12(b)(3), because N2 Global's bylaws contain a
forum-selection clause which states:
[T]he Court of Chancery of the State of Delaware shall be the
sole and exclusive forum for (i) any derivative action or
proceeding brought on behalf of the Corporation, (ii) any
action asserting a claim of breach of a fiduciary duty owed
by any director, officer or other employee of the Corporation
to the Corporation or the Corporation's stockholders,
(iii) any action asserting a claim arising pursuant to any
provision of the Delaware General Corporation Law, or (iv)
any action asserting a claim governed by the internal affairs
doctrine. . . .
Second Amended Complaint alleges that these bylaws are
falsified and backdated. The Second Amended Complaint also
observes that, in related litigation, a New York court held a
forum selection clause Defendants submitted to the court was
fraudulent and unreasonable.
Court need not decide whether the forum selection clause is
valid at this time because even if it were valid, this is not
grounds to dismiss the case. “Section 1406(a) and Rule
12(b)(3) allow dismissal only when venue is ‘wrong'
or ‘improper.' Whether venue is ‘wrong'
or ‘improper' depends exclusively on whether the
court in which the case was brought satisfies the
requirements of federal venue laws, and those provisions say
nothing about a forum-selection clause.” Atl.
Marine Constr. Co. v. United States Dist. Ct. for W. Dist. Of
Texas, 571 U.S. 49, 55 (2013).
portion of the motion is denied.
Plaintiffs properly served Amelio.
process server attempted to serve Amelio at 160 East 89th
Street, Apt. 4C, in New York City, which is N2 Global's
place of business and, as Amelio acknowledges, his residence.
Conspicuous Service Aff. (Doc. 5); Mot. to Dismiss ¶ 9
(Doc. 81). According to the process server's affidavit,
on March 6, 2018, at 10:10 a.m., he knocked on the apartment
door and no one answered. Conspicuous Service Aff. The
doorman told him someone would be in after 7:00 p.m., so the
process server returned at 7:30 p.m. and knocked on the door
again. Id. No. one answered. Id. After
making reasonable efforts to find someone legally eligible
and willing to accept service, the process server affixed a
copy of the summons, civil cover sheet, and complaint to the
door. Id. The next day he mailed the documents to
Amelio at the above address in a postpaid wrapper marked
“personal & confidential” with no indication
that the mailing regarded a legal matter. Id. He
sent the package via U.S. Postal Service first-class, regular
Rule of Civil Procedure 4(e)(1) provides that an individual
“may be served in a judicial district of the United
States 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.” Since service was made in the state of New York,
§ 308 of New York's Civil Practice Law & Rules
governs service of process. This rule provides that where,
with due diligence, service cannot be made on a natural
person, service may be made by affixing the summons to the
door of the person's “actual place of
business” and “by mailing the summons by first
class mail to the person to be served at his or her actual
place of business in an envelope bearing the legend
‘personal and confidential' and not indicating on
the outside . . . that the communication is from an attorney
or concerns” a lawsuit. This is precisely the procedure
the process server followed, so service was valid.
Court is unpersuaded by Amelio's argument that service
was defective because his building has a policy of not
permitting unauthorized party access to residential units,
and doormen are not authorized or permitted to receive or
deliver legal documents. This assertion is not made under
oath and, even if it were true, that does not mean the
process server did not persuade a doorman to admit him in
violation of the policy. Accordingly, the Court holds
Plaintiffs have demonstrated service on Amelio was proper.
The Court has personal ...