Affie, Inc. v. Nurel Enterprises, Inc., Civ. A. No. 83-3530.

• Decision Date: 21 September 1984
• Docket Number: Civ. A. No. 83-3530.
• Citation: 607 F. Supp. 220
• Parties: AFFIE, INC., et al., Plaintiffs, v. NUREL ENTERPRISES, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

607 F. Supp. 220

AFFIE, INC., et al., Plaintiffs, v. NUREL ENTERPRISES, INC., et al., Defendants.

Civ. A. No. 83-3530.

United States District Court, District of Columbia.

September 21, 1984.

P. David Gavin, Silver Spring, Md., for plaintiffs.

Milton D. Jernigan, II, Greenbelt, Md., for defendants.

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

Plaintiffs, Affie, Inc. (Affie), Jafar Z. Shahidi, Affie Z. Shahidi, and Jafar Hair, Limited, bring this diversity action for breach of contract, tortious interference with contractual relationship, and common law defamation. Named as defendants are Nurel Enterprises, Inc. (Nurel), R. Lawson Hanks, Eldridge E. Short, and The 1770 G Street Limited Partnership (Partnership). Defendants Nurel, Hanks, and Short have counterclaimed against plaintiffs for breach of contract, and have cross-claimed against defendant Partnership for breach of contract. This case is currently before the Court on the motion of defendant Partnership to dismiss and for sanctions, and the motion of plaintiffs for default judgment against Partnership.

The pertinent facts giving rise to this suit are that on October 7, 1982, plaintiff Affie and defendant Nurel entered into a written agreement whereby Nurel agreed to sell to Affie the business and assets of a beauty salon/hair salon known as "Class of 2000" located at 1776 G Street, N.W. As a condition precedent to the contract of sale, Nurel was to arrange for the assignment of the lease on the premises to Affie. At the time the contract was signed, Nurel leased the premises from the Partnership. Following the sale of the assets of the business, assignment of the lease was not effected and the instant suit resulted.

The Court first turns its attention to the motion of Partnership to dismiss. In support of that motion, Partnership contends that the action against it should be dismissed for failure of plaintiff to effect service on Partnership and because the Court does not have subject matter jurisdiction because of lack of complete diversity. In addition, Partnership asks for sanctions against plaintiff and its counsel including attorneys' fees incurred in connection with Partnership's motion to dismiss.

The facts relevant to Partnership's motion to dismiss are that on November 28, 1983, the instant action was filed against the above-named defendants. In the complaint, plaintiff Affie, Inc. is alleged to be a corporation organized under the laws of the District of Columbia. Defendant Partnership is a limited partnership whose general partners, Robert T. Foley and the Robert T. Foley Company, are both citizens of the District of Columbia for jurisdictional purposes. Plaintiffs attempted to serve Partnership by mailing the summons, complaint and a notice and acknowledgment of receipt of summons to Mr. Foley, who is identified in the complaint as the "Registered Agent" of the Partnership. Believing that service of process in the District of Columbia cannot be effected on a partnership by serving a registered agent, and after being advised by the Office of the Clerk of the District Court that objections to the sufficiency of service might be waived if Mr. Foley executed the notice acknowledging receipt of summons, counsel for Mr. Foley and the defendant Partnership returned the notice to plaintiffs' counsel, unsigned, with a letter explaining why counsel believed service could not be effected on the defendant Partnership through Mr. Foley.

Rule 4(d)(3) permits service upon a partnership by delivering a copy of the summons and complaint to a general agent of the partnership only if the partnership "is subject to suit under a common name." Under Fed.R.Civ.P. 17(b), capacity to sue a partnership in its common name under diversity jurisdiction is determined by the law of the forum. In the District of Columbia, a partnership may not be sued in its common name. Day v. Avery, 548 F.2d 1018, 1022 (D.C.Cir.1976), cert. denied, 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394 (1977). Since there is no statute in the District of Columbia permitting suit by or against a partnership in its common name, and since by the common law of the District of Columbia a partnership is not a jural entity capable of suing or being sued, plaintiffs' attempt to effect service on the defendant Partnership by serving Robert T. Foley in his capacity as a "Registered Agent" of the Partnership was improper under the Federal Rules. Rather, the action must be brought in the names of the partners, with service of process upon them individually. Matson v. Mackubin, 57 F.2d 941 (D.C.Cir.1932).

Mr. Foley refused to accept service for Partnership and did not execute the notice and acknowledgment of receipt of summons, but rather returned the notice unsigned to plaintiffs' counsel with an explanation of his refusal to accept service. Under Rule 4(c)(2)(...