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Fresh v. Diamond Development Investments, Inc.

United States District Court, N.D. Georgia, Atlanta Division

August 5, 2014

MICHAEL FRESH, Plaintiff.
v.
DIAMOND DEVELOPMENT INVESTMENTS, INC. d/b/a DIAMOND DAVE'S STEAKHOUSE, and DAVID ULMER, Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Defendants' Motion to Dismiss for Insufficient Service ("Motion") [7] and Defendants' Motion to Stay Preliminary Pretrial Deadlines and Discovery [8].

I. BACKGROUND

In April 2012, Defendant Diamond Development & Investments, Inc. ("Diamond") d/b/a Diamond Dave's Steakhouse ("Diamond Dave's") hired Plaintiff Michael Fresh ("Plaintiff") as a cook.[1] (Compl. ¶ 20). Plaintiff asserts that Defendant David Ulmer ("Ulmer"), CEO of Diamond, "had discretion over Plaintiff's working hours and overtime compensation." (Id. ¶¶ 14-15).[2] On August 9, 2013, Plaintiff filed this action against Diamond and Ulmer (collectively, "Defendants") for allegedly failing to pay him overtime wages, in violation of Section 7 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207. Plaintiff seeks to recover unpaid wages, liquidated damages, attorney's fees, and costs. (Id. ¶ 30).

On October 22, 2013, Plaintiff's counsel hired Elizabeth Shepherd ("Shepherd") of Triple Threat Legal Service to serve the Summons and Complaint on Ulmer. ([9] at 2). Shepherd filed an affidavit of service stating that she served Ulmer with a copy of the Summons and Complaint on October 29, 2013. ([4, 5]).

On November 18, 2013, Defendants filed their Motion asserting that service of process was deficient because Ulmer was not personally served.[3] Defendants assert that Plaintiff left a copy of the Summons and Complaint on a porch outside of Ulmer's residence without "having made any physical, verbal, visual, or any other form of personal contact with any awake [sic] person at the residence whatsoever." (Mot. ¶ 2).

Defendants submitted four (4) affidavits in support of their Motion. In the first affidavit, Ulmer testified that he "was at his home on Tuesday, October 29, 2013, from the hours of 3:00 a.m., when [he] returned home from work, until after 6:00 p.m." (Ulmer Aff. [7 at 11-12] ¶ 7). In the second affidavit, Diane Stasney ("Stasney"), a "close personal friend" of Ulmer testified that she was also at Ulmer's residence on Tuesday, October 29, 2013, from 11:00 a.m. until after 6:00 p.m., and that "the door bell was not rung during the time [she] was visiting, no one knocked on any door and no one called out or attempted to get anyone's attention or enter [Ulmer's] home." (Stasney Aff [7 at 14-15] ¶¶ 3-7). In the third and fourth affidavits, Luann Demm ("Demm") and Clara Gail Carter ("Carter"), the assistant and general managers of Diamond Dave's, testified that Ulmer visits Diamond Dave's nearly every day and that he "is generally conspicuous and available to the public." (Demm Aff. [7 at 17] ¶¶ 4-5; Carter Aff [7 at 20] ¶¶ 4-5).

In the Motion, Defendants contend that "[t]he mere act of leaving some documents on an exterior porch and stealing off without making some sort of actual contact and/or communication... cannot form a sufficient basis on which to predicate the jurisdiction of the Court." (Id. at 8).

In response to Defendants' Motion, Plaintiff submitted an affidavit from Shepherd, Plaintiff's process server. Shepherd testified in her affidavit:

• She "visited Diamond Dave's restaurant in an attempt to serve [Ulmer] on October 22, 2013 at 6:30 p.m., October 23, 2013, at 7:15 p.m., and October 25, 2013, at 4:45 p.m." (Shepherd [9-1] Aff. ¶ 3). She also visited Kryptonite, another restaurant owned by Ulmer, "in an attempt to serve [Ulmer] on October 23, 2013, at 4:45 p.m." (Id. at ¶ 4). Ulmer's car was not at these locations when she visited.[4] "At no time did [she] see [Ulmer] or his vehicle (a black Toyota Tundra truck with license plate number DBU 111) at either restaurant." (Id. at ¶ 5).
• "At approximately 1:30 p.m. on October 29, 2013, [she] arrived at [Ulmer's] residence and [she] saw an older white male standing in the driveway speaking to man [sic] standing in the doorframe of the front door, holding the glass door open. [She] also saw a portable workbench/saw horse [sic] further down the driveway." (Id. at ¶ 7).
• She "immediately recognized [Ulmer] as the man standing in the doorframe from pictures... and [she] made direct eye contact with him." (Id. at ¶ 8).
• She "continued down the street... and turned around. As [she] re-approached [Ulmer's] house, [she] saw the man fitting [Ulmer's] description leaning into the driver's side of a black Toyota Tundra, with the license plate number DBU 111." (Id. at ¶ 9).
• She "pulled into the driveway next door, and as [she] exited [her] vehicle, the man fitting [Ulmer's] description and [she] re-established eye contact." (Id. at ¶ 10). Ulmer allegedly "hurried up the front porch stairs, turned around and looked at [Shepherd] through the glass door as [she] [approached] the door... [h]e then closed the front wooden door as [she] was approximately 6 feet away from it." (Id. at ¶ 11). Shepherd "called out excuse me, excuse me' [to Ulmer]... ...

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