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

United States District Court for the Southern District of New York
8 F. Supp. 2d 372 (1998)


The American Institute of Certified Public Accountants (AICPA) (plaintiff) brought a diversity suit against Affinity Card, Inc. (Affinity) (defendant) for breach of contract. Peter Murphy, a professional process server, brought AICPA’s complaint and summons to Affinity’s place of business in Wellesley, Massachusetts. The office suite was shared by four companies, all of which were partially owned by Greg Miller, the president of Affinity. When Murphy entered the suite, he asked Patrick McDonald whether Miller was available. McDonald said Miller was out. Murphy asked McDonald his title, to which McDonald responded, “assistant vice president.” Murphy assumed McDonald meant assistant vice president of Affinity. In actuality, McDonald was assistant vice president of another company, Primecard, for which he had worked just one month. According to AICPA, Murphy showed the legal documents to McDonald, who told Murphy that he could accept them on behalf of Affinity. According to Affinity, Murphy handed McDonald a sealed envelope without indicating its contents or asking whether McDonald could accept service for Affinity. In any event, Miller received AICPA’s complaint and summons that day. Affinity never answered the complaint. A default judgment was entered. Affinity moved to vacate the judgment for lack of personal jurisdiction because of improper service of process.

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