Process - Agent to Receive Service - Private Agent Authorized by Law - Out-of-State Requirement to Forward Process to Principal

The Rybak Firm, PLLC, Brooklyn, for plaintiff.

Law Offices of Rothenberg & Burns, Garden City, for defendant.

At traverse hearing held on July 30, 2025, and post-hearing{**88 Misc 3d at 457} memoranda of law, decision and order upholds service of process duly perfected in favor of plaintiff. The Civil Court has jurisdiction of defendant in this matter. Underlying order to show cause to proceed on the merits on October 7, 2025.

Before this court's traverse hearing is an apparent case of first impression. Defendant failed to provide any Oklahoma supporting legal precedent nor legislative history nor legislative intent for its sole argument. Defendant errs in its argument that the Oklahoma statute as black-letter law is dispositively premised solely on the plain letter of the law of the words contained therein, which plaintiff viably countered. On the contrary, the plain meaning of the words contained therein in full context is indeed subject to judicial interpretation. Defendant failed to provide support for its interpretation of the plain letter of the law of which it argues. The issue presented herein is whether personal service upon its registered agent, a privately contracted and appointed corporate agent designated and added by defendant to a list of registered agents maintained by the Oklahoma Secretary of State, is for purposes of service of process an agent "authorized by statute" to receive service and the authorizing statute "so requires, by also mailing a copy to the defendant" the summons and complaint in order to perfect the service of process:

"(3) upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the petition to an officer, a managing or general agent or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant" (Okla Stat tit 12, § 2004).

It is upon such premise that defendant argues that its privately contracted designated appointed [*2]agent, CSC, is a statutorily authorized and designated agent by virtue of its being defendant's registered agent on the Oklahoma Secretary of State's list of registered agents. This court rejects said argument that the mere adding of defendant's agent by adding CSC to the Secretary of State's registered agent list, added by defendant, is what the statute contemplates and intends to be one authorized by statute to require a subsequent mailing by the Oklahoma process server upon that private agent's principal defendant. Rather, it is opined that the statute contemplates the{**88 Misc 3d at 458} Oklahoma Secretary of State or any other governmental agency or official acting under color of state law would be classified as an agent authorized by statute to receive service of process. Therefore, a secondary mailing upon a privately contracted appointed registered agent would not require a secondary mailing directly to defendant by the process server. Upon Oklahoma Licensed Process Server Michael Shepherd's service upon defendant's privately appointed and designated agent, CSC, service was perfected and there was no subsequent mailing required.

Although there is no specific Oklahoma precedent on all fours, infra is instructive and persuasive:

"The answer to the second Steincamp question involves settling what is required to authorize a person 'by appointment' as an agent for the purpose of receiving service of process, and what is required to identify one who has become an agent 'authorized by law.' The Oklahoma Pleading Code was adapted from the Federal Rules of Civil Procedure in 1984. The adoption of the federal statutes by the legislature provides this Court with a body of authority from federal case law where the text of the Federal Rules has been adopted in the Oklahoma Pleading Code. Federal Rule of Civil Procedure 4(d)(1) provides for service to be made:

" 'Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. [Emphasis provided.]'

"The entire paragraph is substantially the same as § 2004(C)(1)(c)(1), which we are construing. The emphasized language in the federal statute is identical to that in our state statute. An example of an agent authorized by appointment is found in National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964)" (Graff v Kelly, 1991 OK 71, ¶ 14, 814 P2d 489, 493-494 [1991] [citations omitted], citing Laubach v Morgan, 1978 OK 5, ¶¶ 5-10, 588 P2d 1071, 1073 [1978], {**88 Misc 3d at 459}and Baker v Knott, 1972 OK 6, ¶¶ 8-13, 494 P2d 302, 304 [1972]).

Since Graff, the statute was amended to satisfy due process concerns of notice when service is made upon governmental agents such as the Secretary of State, to mandate subsequent mailing directly to the relevant defendant (Okla Stat tit 12, § 2004; see Wuchter v Pizzutti, 276 US 13, 24 [1928] [Although the nonresident had actual notice by out-of-state service, he did not appear and the statute did not require such notice, and therefore such notice did not "supply constitutional validity to the statute or to service under it"]).[*3]

"The Federal Rules of Civil Procedure provide that service of process upon an individual may be made 'by delivering a copy of the summons and of the complaint to an agent authorized by appointment . . . to receive service of process.' . . . The only question now before us is whether the person upon whom the summons and complaint were served was 'an agent authorized by appointment' to receive the same, so as to subject the respondents to the jurisdiction of the federal court in New York. . . .

"Under well-settled general principles of the law of agency Florence Weinberg's prompt acceptance and transmittal to the respondents of the summons and complaint pursuant to the authorization was itself sufficient to validate the agency, even though there was no explicit previous promise on her part to do so. 'The principal's authorization may neither expressly nor impliedly request any expression of assent by the agent as a condition of the authority, and in such a case any exercise of power by the agent within the scope of the authorization, during the term for which it was given, or within a reasonable time if no fixed term was mentioned, will bind the principal.' " (National Equipment Rental, Ltd. v Szukhent, 375 US 311, 312-313, 316 [1964], citing 2 Williston on Contracts § 274 [3d ed 1959].)

Herein, defendant's protestations that its private contractually designated appointed agent failed to forward summons to defendant, its principal, is of no moment nor import here.

"Here, Plaintiff has shown that on January 23, 2018, Ms. Roberts, the registered agent who was authorized to accept service of process on behalf of KWS signed and returned the receipt. According to the documents filed by KWS with the seal of the{**88 Misc 3d at 460} Secretary of State of Oklahoma, she is the authorized agent to accept service of process and was appointed on September 8, 2009. The documents from the Secretary of State also show that she was the registered agent for service of process at least until May 31, 2018, and that no one else has been designated as the registered agent for KWS. Moreover, she signed the return receipt on January 23, 2018, accepting service of the Complaint, and the fact that she did not check either box as 'addressee' or 'agent' is irrelevant, given her status as the registered agent to accept service of process." (Scalla v KWS, Inc., 2018 WL 6271646, *4, 2018 US Dist LEXIS 203453, *9-10 [ED Pa, Nov. 30, 2018, No. 18-1333] [citations omitted].)

Thus, in Scalla, mail service on the Oklahoma registered agent is service on principal defendant as agent is standing in the shoes of principal defendant, without any further direct mailing to addressee principal defendant. Arguendo, if indeed, as consistent with SCOTUS, service had been upon a statutory agent, such as the Oklahoma Secretary of State, then failure of a secondary mailing to defendant would have invalidated proper service as a violation of constitutional due process upon defendant. That is not the case here. Rather, as held by SCOTUS, any exercise of power by the privately contracted designated registered agent binds the principal. Service of the summons upon the registered agent in Oklahoma is service upon the principal as argued by plaintiff. (Id.) Once registered agent was served by Oklahoma licensed process server Michael Shepherd, failure of defendant's registered agent CSC to forward summons and complaint to its principal, defendant, is of no import as to the validity of service. This privately appointed registered agent chosen and designated by defendant stands in the shoes of its principal. Defendant's argument is rejected, where it claims that by adding its privately appointed agent, CSC, to the Oklahoma Secretary of State registered agent list renders defendant's agent an agent [*4]acting under color of state law as the "agent is one authorized by statute to receive service" thus requiring a secondary mailing of the summons and complaint directly to defendant (Okla Stat tit 12, § 2004 [emphasis added]). No such requirement for a secondary mailing is here required. Service of process was perfected on defendant on December 27, 2023, by the Oklahoma licensed process server Michael Shepherd.{**88 Misc 3d at 461}

For the foregoing reasons, traverse hearing decided in favor of plaintiff. Service of process is upheld as valid. Order to show cause on the merits adjourned to October 7, 2025.