American Institute Of Certified Public Accountants v. Affinity Card, Inc.,

8 F. Supp. 2d 372 (S.D.N.Y. 1998)

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Nature of the Case

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Facts

P, D, and Marine Midland Bank established a Visa credit card marketed to P members with D's promotional assistance and issued by Marine Midland. P and D are entitled to a share in the fees collected from the program's participants. P alleges that D has improperly withheld information concerning these fees and has failed to make payments as obligated. P sued and attempted service upon D on March 30, 1998. Peter Murphy, a professional process server, handed the summons and complaint to one Patrick McDonald at D's principal place of business in Wellesley, Massachusetts. P subsequently filed an affidavit of service that identified McDonald as Assistant Vice-president of Affinity. McDonald, however, is not employed by D. He is the Assistant Vice-President of Primecard Corporation ('Primecard'). D shares a suite of offices with three other companies, including Primecard. Four companies share a receptionist's area, but the most significant link joining them is Greg Miller, president, treasurer, and at least a partial owner of all. When served, McDonald said he could accept the papers and would make sure Miller received them that afternoon. The process server assumed that McDonald was the Assistant Vice President of Affinity when McDonald announced his position. D contends that after McDonald identified himself as Assistant Vice-President, Murphy said 'that will do,' or words to that effect, and handed over a sealed white envelope addressed to Miller. D now moves for an order vacating the default judgment pursuant to Federal Rules of Civil Procedure 55(c) and 60(b)(4).