Contractors Compensation Trust (Plaintiff) is a group self-insured trust, meaning that a fund was set up by a group of employees to pay for employee welfare benefits (OLR Research Report, 2004). Such trusts are subject to the provisions set forth in the Federal Employee Retirement Income Security Act of 1974 (OLR Research Report, 2004). Former members of the Trust are the Defendants in this action.
The Trust embarked on this action against former members on December 3rd, 2019, through electronically filing a summons and verified complaints naming all 1,411 Defendants. Plaintiff alleges that defendants failed to make the required payments by a deficit assessment issued by the Trust on December 12th, 2013. Trust now seeks entry of a default judgment against all 1,411 Defendants for failing to appear in response to the above complaint.
The current stance is, when Defendant(s) fail to appear or proceed to trial, Plaintiff may seek default judgments as per Civil Practice Law and Rules (CPLR) 3215 [A]. Such motion must be supported by proof of service of the summons and complaint, default, and proof of the facts constituting the claim (CPLR 3215 [F]). Based on this rule, Plaintiff submitted proof that each Defendant failed to timely answer or appear following service of process. They also submit proof that service was made in accordance with Business Corporation Law (BCL) AND Limited Liability Company (LLC) Law, via delivering to the Secretary of State a hard copy of the 23-page summons and a flash drive containing an electronic copy of the 809-page complaint and a 242-page “Schedule A”.
The issue that arises here is that nothing in the CPLR, BCL or LLC law guidelines authorities Plaintiffs to serve a complaint other than by delivery of a hard copy of the pleading. However, the CPLR does permit papers to be served on an attorney via electronic means. Regarding non-attorney’s, the courts stances requires that services of initiating documents…shall be made as provided in Article 3 of the CPLR or by electronic means if the party served agrees to accept such services. The court does recognize that burden associated with service of an 809-page complaint and a 242-page Schedule upon 1,411 Defendants but remains in alignment with the current law requiring a Plaintiff to strictly comply with the legally prescribed method of service.
If Plaintiff had complained with the current accepted methods of service, almost 1.5 million pages of pleading would have been distributed. The Plaintiff’s creative attempt at avoiding printing such an excessive amount could be seen as a call to update the current stance on method of delivery. However, there are risks and concerns that may arise if electronic services are accepted. As noted in the Decision and Order of this action, in the age of cyber-security risks this alone may be good reason for refusing to allow an unknown flash drive to be inserted into a computer network. However, such risks can be averted if electronic services are made via a trusted system like NYSCEF or another method of electronic transmission agreed upon by parties.
As we continue to move towards a technologically advanced society, it is expected that we adapt to using electronic means as a way of services. There are many benefits to doing so including saving time and resources when serving an excessive number of pages within a complaint. As there are risks involved in doing so, these risks mentioned can be averted if adopted and ultimately this would promote the more environmentally friendly trend in business practices today.
Although the court concluded in this action that the affidavits submitted by the Plaintiff fail to demonstrate that service was made in an authorized manner, the decisions ultimately stand as a starting point for discussions to further developed around electronic serving.
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