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FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024
SUPREME COURT OF THE STATE OF NEW
YORK COUNTY OF NEW YORK
INDEX NO.: 654499/2022
)
ARBORETUM SILVERLEAF INCOME FUND LP ) NOTICE OF MOTION
AND ACF CREDIT PROGRAM LLC ) AND MOTION TO
) DISMISS FOR FAILURE
Plaintiffs, ) TO EFFECTUATE
) SERVICE ON
-against- DEFENDANT
) OR,
) ALTERNATIVELY,
JEFF KATOFSKY and ERNEST BARRECA ) QUASH SERVICE OF
AS TRUSTEE OF THE SKG FAMILY TRUST, ) SUMMONS
ET AL. )
) Date: 3/5/24
Defendants. ) Time: 9:30 a.m.
) Room: 130, 60 Centre Street
New York, NY
TO THE HONORABLE COURT, PLAINTIFFS, AND THEIR ATTORNEYS OF
RECORD:
PLEASE TAKE NOTICE THAT on 3/5/24, 9:30 a.m. in Room 130, Motion
Submission Department of the above-referenced Court, New York, NY, Defendant, JEFF
KATOFSKY ("Katofsky") hereby requests that his previously filed Motion to Dismiss
the Complaint or, in the alternative, Quash Service of Summons, filed in the United
States District Court for the Southern District of New York ("District Court") be heard.
Specifically, on February 15, 2023, Katofsky filed his motion to dismiss or quash
service of summons in the District Court. Prior to entertaining the motion to dismiss, on
May 5, 2023, the District Court entered an Order remanding this case back to the
Supreme Court for the State of New York. Since such time, there has been no indication
that the case has been effectively remanded and reactivated in the Supreme Court.
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However, despite lack of notice, on January 4, 2024, Plaintiff appears to have requested
entry of default against Katofsky. Katofsky respectfully requests that his motion to
dismiss or, alternatively, quash service be heard and that no default be entered as
requested. Attached hereto as Exhibit A is a true and correct copy of Kato ky's Mot n
to Dismiss or, in the Alternative, Quashing Service of Summons.
Date: January 4, 2024
Jeffkat
In Pr er
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Exhibit A
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Case 1:23-cv-01144-JHR Document 4 Filed 02/15/23 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
1:23-cy-01144-JHR
)
ARBORETUM SILVERLEAF INCOME FUND LP ) NOTICE OF MOTION
AND ACF CREDIT PROGRAM LLC ) TO DISMISS PURSUANT
) TO RULE 12(b)(5)
Plaintiff/Petitioner, ) OF THE FEDERAL
) RULES OF CIVIL
-against- PROCEDURE IN
) OR,
) THE ALTERNATIVE,
JEFF KATOFSKY and ERNEST BARRECA ) QUASHING SERVICE OF
AS TRUSTEE OF THE SKG FAMILY TRUST, ) SUMMONS
ET AL. )
)
Defendant/Respondent. )
)
PLEASE TAKE NOTICE that Defendant Jeff Katofsky ("Katofsky"), based
upon this Notice, the memorandum of law submitted herewith, the Declarations of Jeff
and Jyll Katofsky, and other matters which may be considered at or before the time of
hearing this matter, hereby moves this Court, pursuant to Rule 12(b)(5) of the Federal
Rules of Civil Procedure, dismissing Plaintiff Arboretum Silverleaf Income Fund LP and
ACF Credit Program LLC's Complaint against Katofsky or, in the alternative, quashing
service of summons.
///.
///.
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Case 1:23-cv-01144-JHR Document 4 Filed 02/15/23 Page 2 of 3
PLEASE TAKE FURTHER NOTICE that pursuant to the Honorable Jennifer
H. Rearden's scheduling order as set forth in her Individual Rules and Practices in Civil
Pro Se Cases, Plaintiff's opposition shall be served and filed within four (4) weeks of
receipt of the motion papers and Katofsky reply shall be served and filed within (2)
weeks of receipt of opposition papers.
DATED: February 15, 2023 /s/Jeff Katofsky
Jeff Katofsky, Pro Se
4558 Sherman Oaks Av.
Sherman Oaks, CA 91403
(818) 990-1475
jeff@katofskylaw.com
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Case 1:23-cv-01144-JHR Document 4 Filed 02/15/23 Page 3 of 3
CERTIFICATE OF SERVICE
Re: Arboretum Silverleaf v. Katofsky, et., al, USDC Case #1:23-ev-01144-JHR
I am a citizen of the United States and I am employed in the County of Los Angeles, State
of California. I am over the age of eighteen years and not a party to the within action. My
business address is 4558 Sherman Oaks Avenue, Sherman Oaks, CA 91403.
On February 15, 2023, I served the foregoing document described as NOTICE OF
MOTION TO DISMISS PURSUANT TO RULE 12(b)(5) OF THE FEDERAL RULES OF
CIVIL PROCEDURE, OR IN THE ALTERNATIVE, ORDER TO QUASH SERVICE OF
SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF
JEFF KATOFSKY; DECLARATION OF JYLL KATOFSKY on the interested parties herein
through the Court's Electronic Filing System, serving the parties as indicated below:
Clifford A. Katz, Esq. Ckatz@platzerlaw.com
Richard A. LaFont, Esq. R1afont@platzerlaw.com
PLATZER SWERGOLD
th
475 Park Avenue, 18 FlOOr
New York, NY 10016
___X/ By CM/ECF Service: Such documents were delivered electronically via the Court's
CM/ECF system as noted.
_/ By U. S. Mail as indicated below:
I deposited such envelope in the U.S. mail at Sherman Oaks, California with postage fully
familiar"
prepaid. I am "readily with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with U. S. postal service
on that same day with postage thereon fully prepaid at Sherman Oaks, Califomia in the ordinary
course of business. I am aware that on motion of the party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one day after date of deposit for
mailing in affidavit.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed February 15, 2023 at Sherman Oaks, California.
/S/Judith Groves
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Case 1:23-cv-01144-JHR Document 5 Filed 02/15/23 Page l of 8
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
)
ARBORETUM SILVERLEAF INCOME FUND LP ) 1:23-cv-01144-JHR
AND ACF CREDIT PROGRAM LLC )
)
Plaintiff/Petitioner, )
)
-against-
)
)
JEFF KATOF SKY and ERNEST BARRECA )
AS TRUSTEE OF THE SKG FAMILY TRUST, )
ET AL. )
)
Defendant/Respondent. )
)
DEFENDANT JEFF KATOFSKY'S MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS PURSUANT TO RULE 12(b)(5) OF THE FEDERAL
RULES OF CIVIL PROCEDURE OR, IN THE ALTERNATIVE, QUASH
SERVICE OF SUMMONS
DATED: February 15, 2023 /s/Jeff Katofsky
Jeff Katofsky, Pro Se
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.
TABLE OF AUTHORITIES
CASES PAGES
Fed. Home Loan Mortg. Corp. v. Dutch Lane Assocs.,
775 F. Supp. 133 (S.D.N.Y 1991) ...................... 6
Khan v. Khan, 360 F. App'x 202 (2d Cir. 2010) ...................... 5
M'Baye v. World Boxing Ass I, 429 F. Supp. 2d 652 (S.D.N.Y. 2006) .... 6
Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246 (S.D.N.Y. 2003) .... 5
Omni Capital Int'l Ltd. V. Rudolf Wolff & Co., 484 U.S. 97 (1987) ............ 3
FEDERAL STATUTES
Fed. R. Civ. P. 4 ...................... 3
Fed. R. Civ. P. 4(e) ...................... 5. 7
Fed. R. Civ. P. 12(b) ...................... 6, 7
Fed. R. Civ. P 12(b)(5) ...................... 3, 5, 6
STATE STATUTES
California Code of Civil Procedure § 415.20 ....................... 3, 6, 7
New York Consolidated Laws, Civil Practice Law and Rules § 308 ............. 3, 5, 7
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PRELIMINARY STATEMENT
Defendant Jeff Katofsky ("Katofsky") respectfully submits this memorandum of
law in support of his motion to dismiss Plaintiff Arboretum Silverleaf Income Fund LP
and ACF Credit Program LLC's ("Plaintiff") Complaint against him pursuant to Rule
12(b)(5) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") or, in the Court's
discretion, quashing service of summons. It is well-established that "[b]efore a federal
court may exercise personal jurisdiction over a defendant, the procedural requirement of
satisfied."
service of summons must be Omni Capital Int'l Ltd. V. Rudolf Wolff & Co.,
484 U.S. 97, 104 (1987). Plaintiff failed to serve Katofsky in accordance with Fed. R.
Civ. P. 4, New York Consolidated Laws, Civil Practice Law and Rules ("CVP") § 308, or
California Code of Civil Procedure ("CCP") § 415.20. Plaintiff merely left a copy of the
summons and complaint at the doorstep of Katofsky's California residence, a manner of
service not recognized by state or federal statutes governing service of process.
Consequently, Plaintiff's Complaint against Katofsky should be dismissed pursuant to
Fed. R. Civ. P. 12(b)(5) for insufficient service of process. Alternatively, the Court
should quash service of process and order Plaintiff to effectuate proper service on
Katofsky pursuant to methods set forth in Fed. R. Civ. P. 4, CVP § 308, or CCP § 415.20.
BACKGROUND
On November 28, 2022, Plaintiff filed its Complaint against Katofsky and Ernest
Barreca, as Trustee of the SKG Family Trust ("SKG") (collectively "Defendants").
Plaintiff alleges that Katofsky and SKG guaranteed a Master Lease Agreement ("MSA")
that obligated Planet Clair LLC to make payments to Plaintiff for construction equipment
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leased for work performed at the St. Clair Inn in St. Clair, Michigan. Upon alleged
default of payment by Planet Clair LLC, Plaintiff sought payment from Defendants
pursuant to the Guarantees to cure the alleged default. Since the defaults were allegedly
not cured according to Plaintiff, Plaintiff initiated a Breach of Guaranty action against
Katofsky.
On February 7, 2023, Plaintiff filed a two (2) Affidavits of Service through the
New York Supreme Court E-filing portal. Ronny Delcid, of AAA Attorney Service Co.
of NY, Inc., located in New York, New York, attests that on January 11, 2023, at 11:20
Doe,"
a.m., he served "Jane a co-tenant of the defendant. (Katofsky Decl. ¶ 5; Ex. 1). He
5'6"
describes the person he served as a white female, with black hair, 65 years of age,
and 175 lbs. (Katofsky Decl. ¶ 5; Ex. 1). Thereafter, on January 27, 2023, the documents
were purportedly mailed Katofsky's home address. (Katofsky Decl. ¶ 6; Ex. 2).
However, as set forth in the declarations of Jeff Katofsky and his wife, Jyll
Katofsky, they are the only residents of Katofsky's home in California and are the only
two people of suitable age and discretion to accept service of legal process. (Jyll
Katofsky Decl. ¶¶ 2-3; Jeff Katofsky Decl. ¶¶ 2-3). Mrs. Katofsky attests that no one
handed her copies of the Summons and Complaint filed in this action, and that she is not
the person described in the Affidavit of Service filed in this action. (Jyll Katofsky Decl.
¶¶ 4-6). Based thereon, Plaintiff cannot establish that service has not been properly
effectuated on Katofsky conferring personal jurisdiction over him.
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LEGAL STANDARD
When a defendant moves for dismissal for inadequate service of process pursuant
to Fed. R. Civ. P. 12(b)(5), the plaintiff "bears the burden of establishing that service was
sufficient."
Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010) (summary order). In
considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5), the Court may look
beyond the pleadings, including to affidavits and supporting materials, to determine
whether service was proper. See Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246,
251 (S.D.N.Y. 2003).
A. Manner of Service
Fed. R. Civ. P. 4(e) governs service of summons on individuals. Rule 4(e)
provides that an individual may be served in a judicial district of the United States by: (1)
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 or (2)
doing any of the following: (A) delivering a copy of the summons and of the complaint to
the individual personally; (B) leaving a copy of each at the individual's dwelling or usual
place of abode with someone of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by appointment or by law to receive
process."
service of
Pursuant to CVP § 308, which governs service of personal service of process upon
a natural person under New York civil procedure rules, provides, in relevant part, that
service of process upon a natural person can be made by (1) delivering the summons with
the state to the person to be served or (2) by delivering the summons within the state to a
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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 mailing the summons to the person to
residence..."
be served at his or her last known
Similarly, California Code of Civil Procedure ("CCP") § 415.20 govems
substituted service of summons on individual defendants. Section 415.20(b) provides,
"[i]f a copy of the summons and complaint cannot with reasonable diligence be
personally delivered to the person to be served,... a summons may be served by leaving a
copy of the summons and complaint at the person's dwelling house...in the presence of a
competent member of the household..., who shall be informed of the contents thereof,
and by thereafter mailing a copy of the summons and of the complaint by first-class mail,
postage prepaid to the person to be served at the place where a copy of the summons and
left"
complaint were
B. The Court's Discretion to Quash Service of Summons
Upon a finding of insufficient service, the Court may dismiss the case or may, in
its discretion, retain the case, quash service, and direct that service be effectuated
properly. See M'Baye v. World Boxing Ass I, 429 F. Supp. 2d 652, 657 (S.D.N.Y. 2006).
"[D]ismissal is not mandatory when service of process is improper. Motions under...Rule
12(b)(5) differ from the other motions permitted by Rule 12(b) somewhat in that they
offer the court a course of action other than simply dismissing the case when defendant's
sustained."
defense or objection is Fed Home Loan Mortg. Corp. v. Dutch Lane Assocs.,
775 F. Supp. 133, 138 n.2 (S.D.N.Y 1991).
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ARGUMENT
Plaintiff cannot meet its burden of establishing sufficiency of service of process.
Ronny Delcid, in his affidavit of service, attests that he serv
Preview
FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK INDEX NO.: 654499/2022 ) ARBORETUM SILVERLEAF INCOME FUND LP ) NOTICE OF MOTION AND ACF CREDIT PROGRAM LLC ) AND MOTION TO ) DISMISS FOR FAILURE Plaintiffs, ) TO EFFECTUATE ) SERVICE ON -against- DEFENDANT ) OR, ) ALTERNATIVELY, JEFF KATOFSKY and ERNEST BARRECA ) QUASH SERVICE OF AS TRUSTEE OF THE SKG FAMILY TRUST, ) SUMMONS ET AL. ) ) Date: 3/5/24 Defendants. ) Time: 9:30 a.m. ) Room: 130, 60 Centre Street New York, NY TO THE HONORABLE COURT, PLAINTIFFS, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on 3/5/24, 9:30 a.m. in Room 130, Motion Submission Department of the above-referenced Court, New York, NY, Defendant, JEFF KATOFSKY ("Katofsky") hereby requests that his previously filed Motion to Dismiss the Complaint or, in the alternative, Quash Service of Summons, filed in the United States District Court for the Southern District of New York ("District Court") be heard. Specifically, on February 15, 2023, Katofsky filed his motion to dismiss or quash service of summons in the District Court. Prior to entertaining the motion to dismiss, on May 5, 2023, the District Court entered an Order remanding this case back to the Supreme Court for the State of New York. Since such time, there has been no indication that the case has been effectively remanded and reactivated in the Supreme Court. 1 1 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 However, despite lack of notice, on January 4, 2024, Plaintiff appears to have requested entry of default against Katofsky. Katofsky respectfully requests that his motion to dismiss or, alternatively, quash service be heard and that no default be entered as requested. Attached hereto as Exhibit A is a true and correct copy of Kato ky's Mot n to Dismiss or, in the Alternative, Quashing Service of Summons. Date: January 4, 2024 Jeffkat In Pr er 2 2 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Exhibit A 3 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 4 Filed 02/15/23 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 1:23-cy-01144-JHR ) ARBORETUM SILVERLEAF INCOME FUND LP ) NOTICE OF MOTION AND ACF CREDIT PROGRAM LLC ) TO DISMISS PURSUANT ) TO RULE 12(b)(5) Plaintiff/Petitioner, ) OF THE FEDERAL ) RULES OF CIVIL -against- PROCEDURE IN ) OR, ) THE ALTERNATIVE, JEFF KATOFSKY and ERNEST BARRECA ) QUASHING SERVICE OF AS TRUSTEE OF THE SKG FAMILY TRUST, ) SUMMONS ET AL. ) ) Defendant/Respondent. ) ) PLEASE TAKE NOTICE that Defendant Jeff Katofsky ("Katofsky"), based upon this Notice, the memorandum of law submitted herewith, the Declarations of Jeff and Jyll Katofsky, and other matters which may be considered at or before the time of hearing this matter, hereby moves this Court, pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure, dismissing Plaintiff Arboretum Silverleaf Income Fund LP and ACF Credit Program LLC's Complaint against Katofsky or, in the alternative, quashing service of summons. ///. ///. 4 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 4 Filed 02/15/23 Page 2 of 3 PLEASE TAKE FURTHER NOTICE that pursuant to the Honorable Jennifer H. Rearden's scheduling order as set forth in her Individual Rules and Practices in Civil Pro Se Cases, Plaintiff's opposition shall be served and filed within four (4) weeks of receipt of the motion papers and Katofsky reply shall be served and filed within (2) weeks of receipt of opposition papers. DATED: February 15, 2023 /s/Jeff Katofsky Jeff Katofsky, Pro Se 4558 Sherman Oaks Av. Sherman Oaks, CA 91403 (818) 990-1475 jeff@katofskylaw.com 2 5 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 4 Filed 02/15/23 Page 3 of 3 CERTIFICATE OF SERVICE Re: Arboretum Silverleaf v. Katofsky, et., al, USDC Case #1:23-ev-01144-JHR I am a citizen of the United States and I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 4558 Sherman Oaks Avenue, Sherman Oaks, CA 91403. On February 15, 2023, I served the foregoing document described as NOTICE OF MOTION TO DISMISS PURSUANT TO RULE 12(b)(5) OF THE FEDERAL RULES OF CIVIL PROCEDURE, OR IN THE ALTERNATIVE, ORDER TO QUASH SERVICE OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JEFF KATOFSKY; DECLARATION OF JYLL KATOFSKY on the interested parties herein through the Court's Electronic Filing System, serving the parties as indicated below: Clifford A. Katz, Esq. Ckatz@platzerlaw.com Richard A. LaFont, Esq. R1afont@platzerlaw.com PLATZER SWERGOLD th 475 Park Avenue, 18 FlOOr New York, NY 10016 ___X/ By CM/ECF Service: Such documents were delivered electronically via the Court's CM/ECF system as noted. _/ By U. S. Mail as indicated below: I deposited such envelope in the U.S. mail at Sherman Oaks, California with postage fully familiar" prepaid. I am "readily with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U. S. postal service on that same day with postage thereon fully prepaid at Sherman Oaks, Califomia in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed February 15, 2023 at Sherman Oaks, California. /S/Judith Groves 6 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 5 Filed 02/15/23 Page l of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) ARBORETUM SILVERLEAF INCOME FUND LP ) 1:23-cv-01144-JHR AND ACF CREDIT PROGRAM LLC ) ) Plaintiff/Petitioner, ) ) -against- ) ) JEFF KATOF SKY and ERNEST BARRECA ) AS TRUSTEE OF THE SKG FAMILY TRUST, ) ET AL. ) ) Defendant/Respondent. ) ) DEFENDANT JEFF KATOFSKY'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PURSUANT TO RULE 12(b)(5) OF THE FEDERAL RULES OF CIVIL PROCEDURE OR, IN THE ALTERNATIVE, QUASH SERVICE OF SUMMONS DATED: February 15, 2023 /s/Jeff Katofsky Jeff Katofsky, Pro Se 1 7 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 5 Filed 02/15/23 Page 2 of 8 . TABLE OF AUTHORITIES CASES PAGES Fed. Home Loan Mortg. Corp. v. Dutch Lane Assocs., 775 F. Supp. 133 (S.D.N.Y 1991) ...................... 6 Khan v. Khan, 360 F. App'x 202 (2d Cir. 2010) ...................... 5 M'Baye v. World Boxing Ass I, 429 F. Supp. 2d 652 (S.D.N.Y. 2006) .... 6 Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246 (S.D.N.Y. 2003) .... 5 Omni Capital Int'l Ltd. V. Rudolf Wolff & Co., 484 U.S. 97 (1987) ............ 3 FEDERAL STATUTES Fed. R. Civ. P. 4 ...................... 3 Fed. R. Civ. P. 4(e) ...................... 5. 7 Fed. R. Civ. P. 12(b) ...................... 6, 7 Fed. R. Civ. P 12(b)(5) ...................... 3, 5, 6 STATE STATUTES California Code of Civil Procedure § 415.20 ....................... 3, 6, 7 New York Consolidated Laws, Civil Practice Law and Rules § 308 ............. 3, 5, 7 2 8 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1.23-cv-01144-JHR Document 5 Filed 02/15/23 Page 3 of 8 PRELIMINARY STATEMENT Defendant Jeff Katofsky ("Katofsky") respectfully submits this memorandum of law in support of his motion to dismiss Plaintiff Arboretum Silverleaf Income Fund LP and ACF Credit Program LLC's ("Plaintiff") Complaint against him pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") or, in the Court's discretion, quashing service of summons. It is well-established that "[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of satisfied." service of summons must be Omni Capital Int'l Ltd. V. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Plaintiff failed to serve Katofsky in accordance with Fed. R. Civ. P. 4, New York Consolidated Laws, Civil Practice Law and Rules ("CVP") § 308, or California Code of Civil Procedure ("CCP") § 415.20. Plaintiff merely left a copy of the summons and complaint at the doorstep of Katofsky's California residence, a manner of service not recognized by state or federal statutes governing service of process. Consequently, Plaintiff's Complaint against Katofsky should be dismissed pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process. Alternatively, the Court should quash service of process and order Plaintiff to effectuate proper service on Katofsky pursuant to methods set forth in Fed. R. Civ. P. 4, CVP § 308, or CCP § 415.20. BACKGROUND On November 28, 2022, Plaintiff filed its Complaint against Katofsky and Ernest Barreca, as Trustee of the SKG Family Trust ("SKG") (collectively "Defendants"). Plaintiff alleges that Katofsky and SKG guaranteed a Master Lease Agreement ("MSA") that obligated Planet Clair LLC to make payments to Plaintiff for construction equipment 3 9 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 5 Filed 02/15/23 Page 4 of 8 leased for work performed at the St. Clair Inn in St. Clair, Michigan. Upon alleged default of payment by Planet Clair LLC, Plaintiff sought payment from Defendants pursuant to the Guarantees to cure the alleged default. Since the defaults were allegedly not cured according to Plaintiff, Plaintiff initiated a Breach of Guaranty action against Katofsky. On February 7, 2023, Plaintiff filed a two (2) Affidavits of Service through the New York Supreme Court E-filing portal. Ronny Delcid, of AAA Attorney Service Co. of NY, Inc., located in New York, New York, attests that on January 11, 2023, at 11:20 Doe," a.m., he served "Jane a co-tenant of the defendant. (Katofsky Decl. ¶ 5; Ex. 1). He 5'6" describes the person he served as a white female, with black hair, 65 years of age, and 175 lbs. (Katofsky Decl. ¶ 5; Ex. 1). Thereafter, on January 27, 2023, the documents were purportedly mailed Katofsky's home address. (Katofsky Decl. ¶ 6; Ex. 2). However, as set forth in the declarations of Jeff Katofsky and his wife, Jyll Katofsky, they are the only residents of Katofsky's home in California and are the only two people of suitable age and discretion to accept service of legal process. (Jyll Katofsky Decl. ¶¶ 2-3; Jeff Katofsky Decl. ¶¶ 2-3). Mrs. Katofsky attests that no one handed her copies of the Summons and Complaint filed in this action, and that she is not the person described in the Affidavit of Service filed in this action. (Jyll Katofsky Decl. ¶¶ 4-6). Based thereon, Plaintiff cannot establish that service has not been properly effectuated on Katofsky conferring personal jurisdiction over him. 4 10 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 5 Filed 02/15/23 Page 5 of 8 LEGAL STANDARD When a defendant moves for dismissal for inadequate service of process pursuant to Fed. R. Civ. P. 12(b)(5), the plaintiff "bears the burden of establishing that service was sufficient." Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010) (summary order). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5), the Court may look beyond the pleadings, including to affidavits and supporting materials, to determine whether service was proper. See Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246, 251 (S.D.N.Y. 2003). A. Manner of Service Fed. R. Civ. P. 4(e) governs service of summons on individuals. Rule 4(e) provides that an individual may be served in a judicial district of the United States by: (1) 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 or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive process." service of Pursuant to CVP § 308, which governs service of personal service of process upon a natural person under New York civil procedure rules, provides, in relevant part, that service of process upon a natural person can be made by (1) delivering the summons with the state to the person to be served or (2) by delivering the summons within the state to a 5 11 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 5 Filed 02/15/23 Page 6 of 8 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 mailing the summons to the person to residence..." be served at his or her last known Similarly, California Code of Civil Procedure ("CCP") § 415.20 govems substituted service of summons on individual defendants. Section 415.20(b) provides, "[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,... a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house...in the presence of a competent member of the household..., who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and left" complaint were B. The Court's Discretion to Quash Service of Summons Upon a finding of insufficient service, the Court may dismiss the case or may, in its discretion, retain the case, quash service, and direct that service be effectuated properly. See M'Baye v. World Boxing Ass I, 429 F. Supp. 2d 652, 657 (S.D.N.Y. 2006). "[D]ismissal is not mandatory when service of process is improper. Motions under...Rule 12(b)(5) differ from the other motions permitted by Rule 12(b) somewhat in that they offer the court a course of action other than simply dismissing the case when defendant's sustained." defense or objection is Fed Home Loan Mortg. Corp. v. Dutch Lane Assocs., 775 F. Supp. 133, 138 n.2 (S.D.N.Y 1991). 6 12 of 23 FILED: NEW YORK COUNTY CLERK 01/04/2024 04:20 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/04/2024 Case 1:23-cv-01144-JHR Document 5 Filed 02/15/23 Page 7 of 8 ARGUMENT Plaintiff cannot meet its burden of establishing sufficiency of service of process. Ronny Delcid, in his affidavit of service, attests that he serv