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Vitek v. AIG Life Brokerage

February 27, 2007

EDGAR S. VITEK, PLAINTIFF,
v.
AIG LIFE BROKERAGE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Marbley

OPINION AND ORDER

This is a diversity action brought by Edgar S. Vitek alleging violations of Ohio state law. The named defendants in this case are AIG Life Brokerage, American General Life Insurance Company, American International Group, Inc., and The Old Line Life Insurance Company of America ("Old Line") (collectively known as "defendants"). This matter is before the Court on defendants' motion to dismiss Mr. Vitek's complaint for improper service. For the following reasons, defendants' motion to dismiss will be denied. Further, Mr. Vitek will receive an additional thirty (30) days to perfect service.

I.

On June 20, 2006, Mr. Vitek filed a complaint in the Franklin County Court of Common Pleas against the defendants alleging breach of contract, tortious interference with a business relationship, and tortious interference with a contract. Subsequently, the lawsuit was removed to this Court.

The following facts are taken from the Complaint. Mr. Vitek is in the business of selling insurance and has had a General Agency Agreement with Old Line since 1973. (Compl. ¶¶ 1, 6.) Under the terms of that Agreement, Mr. Vitek is entitled to receive commissions for the life of each policy written by an agent or broker who submitted the policy through Mr. Vitek's General Agency. (Id. ¶ 8.) Furthermore, Mr. Vitek is also entitled, under the Agreement, to receive commissions for each policy that he personally wrote and submitted through his General Agency. (Id. ¶ 9.) Mr. Vitek claims that he is entitled to, but has not received, commissions dating back to October 1986 from policies sold by an insurance agent named Mr. Cotterman and submitted to Old Line through Mr. Vitek's General Agency. (See id. ¶¶ 14-20.) Mr. Vitek's tortious interference claims stem from his relationship with Craig Cotterman and Old Line's allegedly improper assignment of insurance policies written by Mr. Vitek. (See id. ¶¶ 23, 25.)

However, as a result of a series of acquisitions and consolidations since 1973, Mr. Vitek's contracts with Old Line have been transferred to one or more of the named defendants. (Id. ¶ 4.) Old Line has since merged into defendant American General Life Insurance Company, which is a wholly owned subsidiary of American International Group, Inc. (Id.; Defs.' Mot. to Dismiss at 5.) In addition, Old Line may have been a predecessor of AIG Life Brokerage, which is a division of American International Group, Inc. (Defs.' Reply in Supp. of Mot. at 6.)

The record indicates that some time after filing the Complaint on June 20, 2006, Mr. Vitek mailed four copies of the summons and complaint by certified mail to 1200 N. Mayfair Rd., Suite 300, Milwaukee, Wisconsin 53226. Each copy was received and signed for at that address: three on June 28, 2006, and one on June 29, 2006. (Pl.'s Mem. in Opp'n at 1.) On July 20, 2006 the defendants removed the action to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332.

On July 27, 2006 the defendants filed a motion to dismiss the Complaint for improper service. The defendants allege that Mr. Vitek did not properly serve the defendants under Rule 4.2(F) of the Ohio Rules of Civil Procedure, and, therefore the Complaint should be dismissed pursuant to Rule 12(b)(5) for insufficient service of process. The issue is fully briefed and the motion is ripe for adjudication.

II.

Pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure, a trial court, upon motion, may dismiss a complaint for failure to make proper service of process. It is well established that "[i]n determining the validity of service in [a] state court prior to removal, a federal court must apply the law of the state under which the service is made." 4A Wright & Miller, Federal Practice and Procedure § 1082 (1969), cited in Allen v, Ferguson, 791 F.2d 611, 616 n.8 (7th Cir. 1986). In the instant case, Mr. Vitek attempted service upon the defendants prior to removal of the case from a Court of Common Pleas in Ohio. Therefore this Court must look to Ohio law to determine whether service of process is valid.

A.

Defendants argue that Mr. Vitek failed to serve three of the four defendants properly under Rule 4.2(F) of the Ohio Rules of Civil Procedure because all defendants were served at an address associated only with AIG Life Brokerage. Mr. Vitek, on the other hand, points to several AIG Life Brokerage correspondences demonstrating that process was served upon each defendant at the appropriate address. This Court must decide whether service of process to each defendant was sufficient pursuant to the Ohio Rules of Civil Procedure.

Ohio R. Civ. P. 4.2(F) states that service of process upon a corporation shall be made: by serving the agent authorized by appointment or by law to receive service of process; or by serving the corporation by certified or express mail at any of its usual places of business; or by serving an officer or a managing or general agent of the corporation.

It is the plaintiff's duty under the Ohio Rules of Civil Procedure to perfect service of process. Maryhew v. Yova, 11 Ohio St.3d 154, 159 (1984). The determination of the sufficiency of service of process is within the sound discretion of the trial court. Bell v. Midwestern Educational Serv., Inc., 89 Ohio App.3d 193, 203 (1993). A presumption of proper service exists when the record reflects that the Civil Rules pertaining to service of ...


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