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Solis v. Koresko

May 20, 2009


The opinion of the court was delivered by: Jones, J.


Before the Court is a Motion for Order Deeming Defendants Served with Complaint filed by Plaintiff Hilda L. Solis, Secretary of Labor, United States Department of Labor (DOL). Plaintiff seeks an Order that the Complaint is deemed served upon the Koresko parties. In the alternative, Plaintiff seeks alternate service of process pursuant to Pennsylvania Rule of Civil Procedure 430. If granted leave pursuant to Rule 430, Plaintiff would serve her Complaint and summons by first class mail to the office of John J. Koresko, V.

I. Background and Relevant Procedural History

On March 6, 2009, Plaintiff filed suit against a number of defendants claiming violations of the Employee Retirement Income Security Act of 1974 (ERISA). Among those defendants are John J. Koresko, V; Jeanne Bonney; Penn-Mont Benefit Services, Inc.; Koresko & Associates, P.C.; Korekso Law Firm, P.C.; Penn Public Trust; and Regional Employers Assurance Leagues Voluntary Employees' Beneficiary Association Trust and Single Employer Welfare Benefit Plan Trust ("the Koresko Defendants"). On March 12, 2009, the Koresko Defendants filed an Emergency Motion to Place Case Under Seal and for Other Equitable Relief and an Emergency Motion for Temporary Restraining Order and Other Preliminary and Permanent Injunctive Relief. In those motions, the Koresko Defendants argue that ERISA does not apply to the benefit plans at issue and that the DOL does not have jurisdiction to bring this case, and they seek relief including dismissal of the Complaint. After argument and additional briefing, on March 26, 2009, the court denied the Koresko Defendants' Motions and ordered that all future pleadings in this matter be filed on the public record.*fn1

On April 8, 2009, Plaintiff filed proof of service upon Defendant Bonney. On April 9, 2009, John J. Koresko, V, Esq., entered an appearance as counsel for himself and for each of the Koresko Defendants.

On April 20, 2009, Ms. Bonney filed a Motion for Extension of Time to File her Answer to the Complaint. In that Motion, Ms. Bonney requested leave to delay her response to the Complaint until twenty days after resolution of various matters, including the appeal of certain Orders entered by the Honorable Mary A. McLaughlin in two cases in this judicial district, 04-mc-74 and 06-mc-192. Ms. Bonney attached a March 18, 2009, letter in which the Koresko Defendants ask Plaintiff to refrain from service while a motion for contempt was pending before Judge McLaughlin. (Bonney Mot. For Extension of Time 2-3; id., Ex. A, Koresko letter to DOL, March 18, 2009 ("Koresko Letter No. 1").) The motion for contempt sought a ruling that the Complaint in this matter was in violation of a Stay Order in Judge McLaughlin's cases. The Koresko Defendants offered to accept service of process in this matter if Judge McLaughlin denied their motion for contempt. (Koresko Letter.) According to the Koresko Defendants, Plaintiff never responded to their March 18, 2009, letter. (Defs.' Opp'n to Mot for Service 2.)

On April 17, 2009, Judge McLaughlin denied the motion for contempt. (See Bonney Mot. For Extension of Time 3.) On April 23, 2009, this court ordered that Ms. Bonney must respond to Plaintiff's Complaint by May 21, 2009.

On April 28, 2009, Plaintiff filed the instant Motion for Order Deeming Defendants Served with the Complaint. Plaintiff filed two exhibits along with her Motion. The first is a four-page Affidavit of Due Diligence by Process Server Dennis Richman. (Pl.'s Mot. for Service, Ex. A., Richman Aff., Apr. 14, 2009 ("Service Attempt Affidavit").) The Service Attempt Affidavit details multiple attempts to serve process upon the Koresko Defendants via Mr. Koresko at his home and his office between March 18, 2009, and April 14, 2009.*fn2 The second exhibit is an April 17, 2009, letter from the DOL's Regional Solicitor to Mr. Koresko. (Pl.'s Mot. for Service, Ex. B., Letter from DOL to Koresko, Apr. 17, 2009.) The letter states that the Koresko defendants, other than Ms. Bonney, had refused to accept service and that Judge McLaughlin had denied the Koresko Defendants' Motion for Contempt. (Id.) The letter also requests a date and time prior to April 24, 2009, when the Koresko Defendants would formally accept service, and states that Plaintiff would seek a court order if the Koresko Defendants would not accept service by that date. (Id.)

On May 5, 2009, the Koresko Defendants filed a Response in Opposition to Plaintiff's Motion for Service. Attached to their Response, the Koresko Defendants filed an April 23, 2009, letter from Mr. Koresko to the DOL, which replies to the DOL's previous correspondence. (Defs.' Opp'n to Pl.'s Mot. for Service, Ex. 2., Letter from Koresko to DOL, Apr. 23, 2009 ("Koresko letter No. 2").) Mr. Koresko's letter opines that the DOL's attempts to serve process in this matter included "vicious tactics," trespass, and terroristic threats upon his minor children. (Id.) The letter restates the Koresko Defendants' contentions that ERISA does not apply to this case and that DOL is bringing suit for an improper purpose, and it provides notice of the Koresko Defendants' intent to file a motion for sanctions against the DOL. (Id.) The letter does not provide a date and time when the Koresko Defendants would accept service.

On May 13, 2009, with leave of this court, Plaintiff filed a Reply regarding her Motion for Service.

II. Discussion

As an initial matter, despite the Koresko Defendants' argument to the contrary, this court has jurisdiction to rule on Plaintiff's Motion for Service. The Koresko Defendants' appeal of this court's denial of their motions to seal the case and for injunctive relief does not divest this court of jurisdiction to rule on this issue, which is not involved in the appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) ("The filing of a notice of appeal . . . confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.).

A. Waiver of Service

Under Rule 4(e)(1) of the Federal Rules of Civil Procedure, service may be effected pursuant to the law of the state in which the district court sits, or in which service is effected. As the case is before the Eastern District of Pennsylvania and all the Koresko Defendants maintain ...

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