Grammenos v. C. M. Lemos

Summary

The Second Circuit held that service of process on the individual defendant and the corporate defendant was ineffective, but that the complaint should not have been dismissed because the plaintiffs could attempt other methods of service. The court also held that forum non conveniens was not an appropriate basis for dismissal at that stage. It remanded for reinstatement of the complaint and further opportunities for service and discovery concerning jurisdiction and Jones Act coverage.

Holdings

1. A defendant does not waive objections to personal jurisdiction or venue merely by making a general appearance or requesting an extension of time; waiver occurs when the party participates substantively without objecting to jurisdiction and asks the court to act on its behalf.
2. Service on Lemos was invalid because leaving process with an adult woman working at his sister's apartment did not constitute service at Lemos's usual place of abode when he did not reside in that apartment or in New York City.
3. Service on Nile through Triton was properly quashed because Triton was not shown to be Nile's officer, managing or general agent, or an agent authorized by appointment or law to receive service under Rule 4(d)(3).
4. Invalid service did not automatically require dismissal of the complaint; the plaintiffs were entitled to an opportunity to obtain valid service through other available methods.
5. Forum non conveniens was not an appropriate ground for dismissal at this stage because the record did not establish an available alternative forum or permit an adequate evaluation of the relevant practical factors.
6. The record did not warrant dismissal at that juncture based on the contention that Lemos was not an employer under the Jones Act or that United States courts should decline jurisdiction over the foreign seamen's claims; further discovery could establish Lemos's ownership, control, residence, and employer status.

Questions Presented

1. Whether the defendants waived objections to personal jurisdiction by making a general appearance or requesting an extension of time.
2. Whether service on Lemos at his sister's apartment constituted valid personal service at his usual place of abode.
3. Whether service on Nile through Triton satisfied Federal Rule of Civil Procedure 4(d)(3).
4. Whether the invalid service required dismissal of the complaint rather than allowing plaintiffs an opportunity to effect valid service.
5. Whether dismissal on forum non conveniens grounds was proper before the availability of an alternative forum and other relevant factors had been established.
6. Whether the record warranted dismissal based on the absence of Jones Act coverage or the absence of sufficient contacts to support United States subject matter jurisdiction over claims by foreign seamen.

Disposition

reversed_and_remanded