Ventureforth Holdings LLC v. Joseph , 80 F. Supp. 3d 147 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VENTUREFORTH HOLDINGS LLC, et al.,
Petitioners,
v. Civil Action No. 14-00957 (TFH)
JEREMY M. JOSEPH,
Respondent.
MEMORANDUM OPINION
This proceeding was initiated by VentureForth Holdings LLC, VentureForth LLC,
Nicolas Vita, Michael Abbott, Apelles VentureForth SPE, LLC, and Sean Gabriel (collectively
the “petitioners”) upon the filing of a petition to confirm an arbitration award pursuant to the
Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 9-14. Pet. to Confirm Arbitration Award ¶ 1 [ECF
No. 1]. Notice of the petition reportedly was served on the respondent, Jeremy Joseph, by a
private process server who supplied a copy of the petition to the respondent’s mother at her
residence in Maryland. The respondent challenges the petition solely on the ground that service
of process was not proper. The respondent contends that, because he is not a resident of the
District of Columbia, the FAA mandates that “service must be effectuated by a U.S. Marshal.”
Mem. of P. & A. in Support of Mot. to Dismiss Pet. to Confirm Arbitration Award or, in the
Alternative, Quash Serv. of Process 2 [ECF No. 7-1]. The respondent therefore filed the pending
Motion to Dismiss Petition to Confirm Arbitration Award or, in the Alternative, to Quash
Service of Process [ECF No. 7]. The petitioners oppose the respondent’s motion on the ground
that service by U.S. Marshals “has long been abandoned in the federal courts” and service was
proper because it was consistent with Rule 4(e) of the Federal Rules of Civil Procedure. Pet’rs’
Opp’n Br. 3-4 [ECF No. 9].
Service of a petition to confirm an arbitration award is governed by § 9 of the FAA,
which states in relevant part that “[i]f the adverse party shall be a nonresident, then the notice of
the application shall be served by the marshal of any district within which the adverse party may
be found in like manner as other process of the court.” 9 U.S.C.A. § 9 (West 2014). Although
the interpretation of this provision appears to be a question of first impression for this Court, in
Technologists, Inc. v. MIR’s Ltd., 725 F. Supp.2d 120 (D.D.C. 2010), Judge Colleen Kollar-
Kotelly addressed whether an identical requirement contained in § 12 1 of the FAA mandated that
service to a nonresident be effectuated by a marshal. 725 F. Supp.2d at 125. Judge Kollar-
Kotelly first noted that persuasive authorities “recognize that because the FAA calls for service
on nonresidents ‘in like manner as other process of the court,’ the provisions in the Federal Rules
of Civil Procedure governing service of process should be applied.” Id. at 126-27 (quoting 9
U.S.C.A. § 12). She then followed “the weight of authority” to conclude that Rule 4 of the
Federal Rules of Civil Procedure was the appropriate rule of procedure to apply to the service
requirement in § 12 of the FAA. Id. at 127. In reaching this conclusion, Judge Kollar-Kotelly
noted that the “requirement that nonresidents be served by the marshal is an artifact of the era in
which United States marshals were the default servers of process in federal courts, an era that
ended in the early 1980s when the Federal Rules of Civil Procedure[] were amended so as to
1
Like § 9, the nonresident service provision in § 12 states that “[i]f the adverse party shall
be a nonresident then the notice of the application shall be served by the marshal of any district
within which the adverse party may be found in like manner as other process of the court.” 9
U.S.C.A. § 12 (West 2014).
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allow for service by any nonparty over the age of 18.” Id. Accordingly, Judge Kollar-Kotelly
deemed the requirement for service by a marshal to be “outdated.” Id.This Court finds Judge Kollar-Kotelly’s analysis to be well reasoned and analogous to the
question of whether § 9 of the FAA mandates that a nonresident be served by the marshal. For
the same reasons set forth by Judge Kollar-Kotelly in Technologists, Inc., this Court holds that
service of a nonresident complies with § 9 of the FAA if service is provided in accordance with
Rule 4 of the Federal Rules of Civil Procedure. See also Reed & Martin, Inc. v. Westinghouse
Elec. Corp., 439 F.2d 1268, 1277 (2d Cir. 1971) (“The phrase ‘in like manner as other process of
the court’ found in § 9 of the Arbitration Act refers to Fed. R. Civ. P. 4 on the accomplishment of
appropriate service . . . .”); Hancor, Inc. v. R & R Eng’g Products, Inc., 381 F. Supp.2d 12, 15-16
(D.P.R. 2005) (determining that Rule 4 of the Federal Rules of Civil Procedure provides the
standard for service of process required by 9 U.S.C. § 9); In re Lauritzen Kosan Tankers (Chem.
Trading, Inc.), 903 F. Supp. 635, 637 (S.D.N.Y. 1995) (“The phrase ‘in like manner as other
process of the court’ included in the FAA refers to Rule 4 of the Federal Rules of Civil
Procedure.”).
Rule 4 provides that “an individual . . . may be served in a judicial district of the United
States by . . . leaving a copy of [the petition] at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there[.]” Fed. R. Civ. P. 4(e)(2)(B).
The petitioners report that “[o]n July 1, 2014, process server Eugene Kassman left a copy with
Eileen Joseph, Respondent’s mother and an individual of suitable age and discretion who resides
at the Potomac Address.” Pet’rs’ Mem. in Opp’n to Resp’t’s Mot. to Dismiss Pet. 6 [ECF No.
9]. The “Potomac Address” refers to an address that the respondent cited as his address for both
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the instant arbitration as well as a second arbitration he commenced in 2013. Id. Ex. 1, Cavallaro
Decl. ¶¶ 8, 9, 17, Exs. C, D, G [ECF No. 9-1]. The process server declared under oath that the
respondent’s mother, Eileen Joseph, stated that she resides at the Potomac Address with the
respondent. Id. Ex. 1, Cavallaro Decl., Ex. G (stating “I served Jeremy M. Joseph . . . by serving
Eileen Joseph, mother of Jeremy M. Joseph . . . who stated that [she] resides therein with Jeremy
M. Joseph”). Given that the respondent failed to rebut any of these facts, the Court is left to
conclude that the respondent’s “dwelling” or “usual place of abode” is the Potomac Address
where he lives with his mother. Accordingly, service achieved by leaving a copy of the
documents with the respondent’s mother at the Potomac Address satisfied the requirements of
Rule 4 and § 9 of the FAA.
CONCLUSION
For the foregoing reasons, the Court will deny the Motion to Dismiss Petition to Confirm
Arbitration Award or, in the Alternative, to Quash Service of Process [ECF No. 7]. In addition,
because no other impediment to confirmation of the arbitration award has been presented to the
Court, the Court will grant the Petition to Confirm Arbitration Award [ECF No. 1]. An
appropriate order will accompany this opinion.
February 20, 2015 ________________________ ________
Thomas F. Hogan
Senior United States District Judge
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