DECISION and ORDER Currently before the Court, in this trademark-infringement action filed by Albany Patroons, Inc., and Albany Basketball & Sports Corp. (“Plaintiffs”) against Derek Demperio and Demperio Sports & Entertainment, LLC (“Defendants”), is Defendant Derek Demperio’s motion to dismiss Plaintiffs’ Amended Complaint on one or more of three grounds: lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2), insufficient service of process under Fed. R. Civ. P. 12(b)(5), and/or failure to join an indispensable party under Fed. R. Civ. P. 12(b)(7). (Dkt. No. 39). For the reasons set forth below, Defendant Derek Demperio’s motion is denied. To the extent that Defendant Derek Demperio argues that the Court lacks personal jurisdiction over him under Fed. R. Civ. P. 12(b)(2) because of the 28-delay between the filing of Plaintiffs’ original Complaint (on March 12, 2021) and the admission of Plaintiffs’ counsel to practice in this District (on April 9, 2021), the Court rejects that argument as unpersuasive. Defendant Derek Demperio does not adequately articulate the connection between the purported lack personal jurisdiction over him and the referenced delay. He does not argue that Plaintiffs’ counsel was not admitted to the New York State Bar when Plaintiffs filed their original Complaint. (See generally Dkt. No. 49.) Nor does he take issue (or even have standing to take issue) with the Court’s discretion as to how to apply Local Rule 83.1 of the District’s Local Rules of Practice. (See generally id.) In any event, he is respectfully reminded that Plaintiffs’ original Complaint never named him as a Defendant. (Dkt. No. 1.) Moreover, by the time Plaintiffs filed an Amended Complaint that did name him as a Defendant (on March 30, 2022), Plaintiffs’ counsel had been admitted to practice in this District for almost a year. Similarly, when Plaintiffs served their Amended Complaint on Defendant Derek Demperio on June 9, 2022 (Dkt. No. 47), Plaintiffs’ counsel had been admitted to practice in this District for 26 months. To the extent that Defendant Derek Demperio argues that Plaintiffs’ claims against him should be dismissed for insufficient service of process under Fed. R. Civ. P. 12(b)(5), the Court rejects that argument also as unpersuasive. Granted, as previously stated it was not until June 9, 2022, that Defendant Derek Demperio was served with the Amended Complaint (which again is the applicable pleading given that the original Complaint never named him as a Defendant, regardless of whether or not it was served on him through the New York Secretary of State on March 22, 2021). (Dkt. No. 47, at 2; Dkt. No. 11.)1 This was nine days after Defendant Derek Demperio filed the current motion to dismiss. (Dkt. No. 39 [filed May 31, 2022].) However, service of the Amended Complaint on Defendant Derek Demperio was not required by Fed. R. Civ. P. 4(m) until June 28, 2022, i.e., 90 days after the filing of the Amended Complaint on March 30, 2022 (Dkt. No. 28).2 In any event, the Court possesses the discretion to extend the deadline for service upon a showing of good cause (which the Court finds exists here, based on the procedural history of this action including Defendant Derek Demperio’s motion to intervene, as well as Plaintiffs’ apparently prior difficulty serving a Notice of Deposition on Defendant Demperio);3 and indeed the Court possesses that discretion even in the absence of good cause.4 For these same reasons, the Court is not persuaded by any argument that Plaintiffs failed to serve their Amended Complaint on Defendant Derek Demperio by May 26, 2022 (i.e., 60 days from the filing of the Amended Complaint), in compliance with General Order 25 and Local Rule 4.1(b) of the District’s Local Rules of Practice. Finally, to the extent that Defendant Derek Demperio argues that Plaintiffs’ claims against him should be dismissed for failure to join an indispensable party under Fed. R. Civ. P. 12(b)(7), the Court rejects that argument also as unpersuasive. The claims that Defendant Derek Demperio is seeking to dismiss through his current motion are claims asserted against him in Plaintiffs’ Amended Complaint, which is the first pleading of Plaintiffs that names Derek Demperio as a Defendant. (Dkt. No. 28.) The fact that Plaintiffs’ original Complaint did not name Derek Demperio a Defendant is of no consequence here given that an amended complaint supersedes an original complaint in all respects.5 In any event, Defendant Derek Demperio is respectfully reminded that Senior U.S. District Judge Frederick J. Scullin granted his motion to intervene on August 5, 2021. (Dkt. No. 17.) Simply stated, this purported ground for dismissal, like the other two, is insufficient. ACCORDINGLY, it is ORDERED that Defendant Derek Demperio’s motion to dismiss (Dkt. No. 39) is DENIED; and it is further ORDERED that Defendant Derek Demperio’s Answer to Plaintiffs’ Amended Complaint is due FOURTEEN (14) DAYS from the issuance of this Decision and Order. Dated: September 14, 2022
