Legal Document: Generation Joy Llc v. Woonam Bio & Environment Co. Ltd.

On June 21, 2023 a AFFIDAVIT OR AFFIRMATION IN SUPPORT OF PROPOSED OSC/EXPARTE APP *Corrected* - Affirmation of David A. Gold, Esq. was filed involving a dispute between Generation Joy Llc, and Woonam Bio & Environment Co. Ltd., for Commercial - Contract in the District Court of New York County.

Preview
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------X
GENERATION JOY LLC, Index No.: 652969/2023

Plaintiff,
-against- ATTORNEY AFFIRMATION

WOONAM BIO & ENVIRONMENT CO. LTD., Motion Sequence
No. 001
Defendant.
-------------------------------------------------------------------X

DAVID A. GOLD, an attorney duly admitted to the practice of law in the State of New

York, hereby affirms, pursuant to CPLR 2106, as follows:

1. I am associated with the law firm KANE KESSLER, P.C., attorneys for Plaintiff

Generation Joy LLC (“Plaintiff”) in the above captioned action and I am fully familiar with the

facts and circumstances surrounding this matter based upon the files and records maintained in

your affirmant’s office.

2. I submit this affirmation in support of Plaintiff’s Order to Show Cause seeking an

Order: (a) extending the time to serve, a Korean company, Defendant Woonam Bio &

Environment Co. Ltd. (“Defendant”) with the Summons and Complaint under CPLR 306-b; and

(b) authorizing service of Defendant by alternative means (email and overnight mail) under

CPLR 311(b).

3. Despite Plaintiff’s best efforts, and after spending significant time and resources,

including in excess of $1,500 in process server and translation fees, Plaintiff has been unable to

effectuate service of process through normal procedures, necessitating the need for judicial

intervention and leave to serve Defendant through alternative means. As explained further

below, Plaintiff requests leave to serve Defendant via both email and overnight mail at multiple

1 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

addresses, including Defendant’s counsel’s address. Defendant will suffer no prejudice.

Moreover, Plaintiff’s request to serve Defendant by email and overnight mail, on Defendant’s

counsel meets the goal of due process ensuring Defendant will have notice of this matter and a

fair opportunity to be heard.

BACKGROUND 1

4. Plaintiff is a Delaware limited liability company with offices in New York, New

York. (Compl., ¶ 2.) Plaintiff specializes in, inter alia, sale of collagen-based supplement

products. (Id.)

5. On or about December 24, 2021, Plaintiff entered into a contract with Defendant,

a Korean company, granting it exclusive rights to distribute Plaintiff’s products, including but

not limited to, Plaintiff’s proprietary collagen powders and creams, lotions, and other products in

South Korea (the “Agreement”). (Id., ¶ 6.) 2

6. Under the terms of the Agreement, Plaintiff appointed Defendant as its “exclusive

distributor” during the term of the Agreement, which expires at the end of this year, December

31, 2024. (Id., ¶ 7.) Defendant agreed to “purchase inventory from [Plaintiff] on a cumulative

basis for each Calendar Year in amounts equal to or greater than” $1,000,000 for calendar year

2022, $1,200,000 for calendar year 2023, and $1,500,000 for calendar year 2024 (“Minimum

Cost Purchases”). (Id., ¶ 8.)

7. Additionally, Defendant agreed to “use its reasonable best efforts to actively

promote the marketing and sale of” Plaintiff’s products. (Id., ¶ 10.) During the term of the

Agreement, Defendant had, and continues to have, an obligation to submit to Plaintiff “for

approval a detailed schedule of [Defendant’s] advertising and marketing plan and budget … for

1
A copy of the Summons and Complaint (“Compl.”) is annexed hereto as Exhibit 1.
2
A copy of the Agreement is annexed hereto as Exhibit 2.
2

2 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

each” year (“Marketing Plan”), something Defendant failed to do. (Id., ¶¶ 10, 16.) Defendant

also agreed that it would “spend no less than twenty-five percent (25%) of the dollar value of the

gross purchases of Products made by [Defendant] from [Plaintiff] during the Calendar Year on

advertising, marketing, public relations, social media, marketing, celebrity endorsements,

influencers, and other promotional activities …”, something again Defendant failed to do. (Id.,

¶¶ 13, 17.)

8. Defendant’s Chief Executive Officer and President, Joon S. Ryu, signed the

Agreement on behalf of Defendant and initialed each page. (Id., ¶ 14; see also Ex. 2.)

9. Yet, less than a year after entering into the Agreement, Defendant repeatedly

breached its obligations under the Agreement, resulting in millions of dollars of damages to

Plaintiff. (Id., ¶¶ 15, 37.) Among other things Defendant failed to pay for products that it

ordered and received and failed to purchase the minimum amount of yearly products. (Id., ¶¶ 16-

18.) On or about October 7, 2022, Defendant assured Plaintiff that it would meet its obligations.

(Id., ¶ 20.) Defendant, however, fell short, failing to meet the minimum purchase amount by

$795,700. (Id.)

10. The following year, the situation only grew worse. Defendant ordered and

received $115,200 in products, but failed to remit any payment for the products. (Id., ¶ 21.)

11. In order to avoid the need for litigation, Plaintiff repeatedly contacted Defendant

via email about the breaches. (Id., ¶ 23.) Although Defendant responded to Plaintiff’s emails,

assuring it would cure its breaches and meet its obligations, Defendant failed to take any steps to

meet its obligations under the Agreement. (Id.)

12. Eventually, Plaintiff served formal notice on Defendant concerning its various

breaches, to which Defendant provided no definitive response. (Id., ¶ 25.) To the extent

3 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

Defendant did respond, Defendant provided no commitment that it would comply with its

obligations under the Agreement. (Id.) On April 28, 2023, Plaintiff’s counsel sent Defendant a

formal notice, outlining the various breaches committed by Defendant. (Id., ¶ 26.) Defendant

never responded to Plaintiff’s notice. (Id., ¶ 27.)

13. On May 11, 2023, Plaintiff’s counsel sent Defendant a follow up email,

concerning the notice sent on April 28, 2023, but again received no response. A copy of

counsel’s email is annexed hereto as Exhibit 3.

14. On May 30, 2023, Plaintiff’s counsel again emailed Defendant annexing a draft of

the complaint, stating that Plaintiff would initiate a lawsuit unless Defendant responded within

three business days with a proposal for addresses Defendant’s various breaches of the

Agreement. A copy of counsel’s email is annexed hereto as Exhibit 4. Yet again, Defendant

provided no response, necessitating the need for this lawsuit.

FAILED EFFORTS TO SERVE DEFENDANT

15. Plaintiff commenced this action by filing a Summons and Complaint on June 21

2023. (See NYSCEF Doc. No. 1.) Several days after filing the Summons and Complaint,

Plaintiff received a bid from an international process server to translate and serve the Summons

and Complaint in accordance with the Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”). In its bid, the

process server advised that it would take three to five months to effectuate service and cost a

minimum of $1,640.50.

16. Plaintiff immediately remitted payment and commenced the process of attempting

to effectuate service under the Hague Convention. Plaintiff directed that the Korean Central

Authority serve Defendant at its business address located at: Woonam Bio & Environment Co.

4 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

Ltd., Woonam Building 2F, Samalro15-Gil22 (Munjung-dong), Songpa-gu, Seoul, Korea 05801.

Defendant listed this same address in the Agreement as the address to serve any notice. (See Ex.

2, ¶ 24.)

17. After repeated requests for updates on the status of service, on October 20, 2023,

the process server advised that the Korean Central Authority responded that the Summons and

Complaint had not been served and provided a certificate of non-service. A copy of the

certificate of service is annexed hereto as Exhibit 5. Plaintiff subsequently obtained a translation

of the certificate of non-service and learned that the Korean Central Authority attempted service

on September 5, 2023, September 6, 2023, and September 7, 2023, but was unable to gain access

to the premises because the doors were locked. A copy of the translated certificate of service is

annexed hereto as Exhibit 6.

18. After receiving the translated certificate of non-service, Plaintiff searched for an

alternative business address to effectuate service. In early December 2023, Plaintiff learned of

another address Defendant may be operating from: 22 Saemal-Ro 15gil, Songpa-Gu, Seoul,

Korea. Plaintiff however, has been unable to confirm whether or not Defendant is located at the

newly discovered address.

ARGUMENT
POINT I
GOOD CAUSE EXISTS TO EXTEND PLAINTIFF’S TIME FOR SERVICE
19. While CPLR 306-b states that service of a Summons and Complaint must be

made within 120 days of filing, the Court may “extend the time for service” upon a showing of

“good cause” or “in the interest of justice.” Both apply here.

20. “To establish good cause, a plaintiff must demonstrate reasonable diligence in

attempting service,” and “good cause may be found to exist where the plaintiff’s failure to timely
5

5 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

serve process is a result of circumstances beyond plaintiff’s control.” Bumpus v. New York City

Transit Autho., 66 A.D. 3d 26, 32 (2d Dep’t 2009); see also Kulpa v. Jackson, 3 Misc. 3d 227

(Sup. Ct. Oneida Co. 2004) (granting extension of time, and expedited service by e-mail, due to

the difficulties involved in serving a litigant in a foreign country under the Hague Service

Convention).

21. Even in the absence of good cause, CPLR 306-b permits the Court to grant an

extension of time in the interest of justice. Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d

95, 105 (2001). As explained by the Court of Appeals:

The interest of justice standard requires a careful judicial analysis
of the factual setting of the case and a balancing of the competing
interests presented by the parties. Unlike an extension request
premised on good cause, a plaintiff need not establish reasonably
diligent efforts at service as a threshold matter. However, the court
may consider diligence, or lack thereof, along with any other
relevant factor in making its determination, including expiration of
the Statute of Limitations, the meritorious nature of the cause of
action, the length of delay in service, the promptness of a plaintiff's
request for the extension of time, and prejudice to defendant.

Leader, 97 N.Y.2d at 105–06. Here, both the interest of justice and the existence of good cause

warrant an extension of time to serve Defendant.

22. As discussed above, Plaintiff made a diligent effort to effect service of process on

Defendant immediately following the filing of the Summons and Complaint. Within a week

after filing the Summons and Complaint, Plaintiff retained a foreign process server to serve

Defendant in Korea pursuant to the Hague Convention. Working through the Korean Central

Authority, Plaintiff’s foreign process server made three separate attempts to serve Defendant in

Korea at Defendant’s business address and at the address listed in the parties’ contract. (See Ex.

6.) Despite these good faith efforts and spending hundreds of dollars in process server and

6 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

translation fees, for reasons beyond its control, Plaintiff was unable to effectuate service.

Bumpus, 66 A.D.3d at 32 (“[G]ood cause may be found to exist where the plaintiff's failure to

timely serve process is a result of circumstances beyond the plaintiff's control.”); see also D & V

Realty LLC v. Mikhail Vasilyevich Klyukin, No. 656782/2022, 2022 WL 17753220, at *1 (Sup.

Ct. N.Y. Co. Dec. 14, 2022) (finding good cause where plaintiff made efforts to locate and serve

defendant abroad). This alone provides a sufficient basis to grant Plaintiff’s request for

additional time.

23. Likewise, the interest of justice decidedly points in favor of granting Plaintiff’s

application. Unlike good cause, the interest of justice is much broader, requiring no showing of

reasonable diligence, accommodating late service “due to mistake, confusion or oversight, so

long as there is no prejudice to the defendant.” Dragons 516 Ltd. v. Knights Genesis Inv. Ltd.,

78 Misc. 3d 1203(A) (Sup. Ct. N.Y. Co. 2023), quoting Matter of Baumann & Sons Buses, Inc. v

Ossining Union Free Sch. Dist., 121 AD3d 1110, 1113 (1st Dep’t 2014).

24. Here, Defendant will suffer no prejudice if the Court grants Plaintiff’s motion.

No discovery has taken place and the Court has entered no scheduling orders.

25. Moreover, Plaintiff has diligently attempted to effectuate service. The difficulties

Plaintiff has encountered in effectuating service abroad under the Hague Convention are not only

relevant but weigh in favor of granting Plaintiff’s application. See Certain Underwriters at

Interest at Lloyd's of London Jointly and Severally Subscribing to Policy # SS0005017 v. Solow

& Co., Inc, No. 652488/2019, 2023 WL 2971396, at *1 (Sup. Ct. N.Y. Co. Apr. 13, 2023)

(“Difficulties associated with service abroad through the Hague Convention is a relevant factor

in determining whether to enlarge a plaintiff's time for service of process.”).

7 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

26. Additionally, Plaintiff has a meritorious claim for breach of contract. Defendant

has repeatedly breached its obligations under the Agreement not only failing to make yearly

minimum purchases, but also failing to pay for products it received from Plaintiff. It is not only

in the interest of justice to grant Plaintiff’s request for additional time, but it is also consistent

with the Court’s policy of deciding cases on the merits where possible. See, e.g., Henneberry v.

Borstein, 91 A.D.3d 493, 497 (1st Dep’t 2012) (“Granting plaintiff the opportunity to pursue this

action is not only consistent with the “interest of justice” exception set forth in CPLR 306–b, but

also with our strong interest in deciding cases on the merits where possible.”).

27. As a result, Plaintiff requests that the Court extend the time to serve process under

CPLR 306-b to 30 days from the entry of the Court’s order on this application. During the 30-

day extension, Plaintiff will attempt service of process using the alternative methods discussed

below (Point II).

POINT II
THE COURT SHOULD GRANT PLAINTIFF’S REQUEST TO EFFECTUATE SERVICE VIA
ALTERNATIVE MEANS

28. In addition to granting Plaintiff’s request for an extension of time to serve

process, the Court should also grant Plaintiff’s request to serve Defendant via email and

overnight mail after Plaintiff’s failed efforts to serve Defendant through the Hague Convention.

If granted permission, Plaintiff intends to effectuate service by:

(a) emailing a copy of the Summons and Complaint to Defendant’s CEO and

President, Joon S. Ryu, at his email address: joonryu@market7.co.kr (the same email address

used by Plaintiff and Plaintiff’s counsel to correspond with Defendant and that is listed in the

Agreement and from which email address Defendant’s president has responded);

8 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

(b) sending via overnight mail to Defendant’s address listed in the Agreement

(Woonam Bio & Environment Co. Ltd., Woonam Building 2F, Samalro15-Gil22 (Munjung-

dong), Songpa-gu, Seoul, Korea 05801);

operating from (22 Saemal-Ro 15gil, Songpa-Gu, Seoul, Korea 05801); and

(d) sending via overnight mail and email a copy to Defendant’s counsel listed

in the Agreement (Kim & Chang, Seyang Building, 39, Sajik-ro 8-gil, Jongno-gu, Seoul, Korea

03170, jbkim@kimchang.com).

29. If service on a corporation is impracticable, the Court may direct another manner

of service upon motion pursuant to CPLR 311(b). Not surprisingly, both state and federal courts

have authorized service of process by email, Facebook, local publication, and certified mail if a

plaintiff demonstrates that such service is likely to reach the defendant. See F.T.C. v.

PCCare247 Inc., No. 12 Civ. 7189 (PAE), 2013 WL 841037, at *4 (S.D.N.Y. Mar. 7, 2013)

(finding service by email and, “for sake of thoroughness,” by Facebook to be reasonably

calculated to provide defendants with notice of future filings); D.R.I., Inc. v. Dennis, No. 3 Civ

10026 (PKL), 2004 WL 1237511, at *1 (S.D.N.Y. Jun. 3, 2004) (granting permission to serve by

certified mail, by publication in a local newspaper, and by e-mail); Korea Deposit Ins. Corp. v.

Jung, 59 Misc. 3d 442, 446 (Sup. Ct. N.Y. Co. 2017) (permitting service via email); Ferrarese v.

Shaw, 164 F. Supp. 3d 361, 367 (E.D.N.Y. 2016) (authorizing service by email, Facebook, and

ordering service by mail on defendant's sister).

30. “Although the impracticability standard is not capable of easy definition, [a]

showing of impracticability” does not require proof of actual prior attempts to serve a party

under the methods outlined by the CPLR. Safadjou v. Mohammadi, 105 A.D.3d 1423, 1424 (4th

9 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

Dep't 2013). New York courts regularly find service impracticable where “plaintiff has been

unsuccessful in obtaining either a business or home address for defendant, even though [it] has

diligently sought that information.” Baidoo v. Blood-Drazku, 48 Misc. 3d 309, 312 (Sup. Ct.

N.Y. Co. 2015). Moreover, unsuccessful attempts to serve a defendant are strong evidence of

impracticability. See Hollow v. Hollow, 193 Misc. 2d 691, 694 (Sup. Ct. Oswego Co. 2002).

31. Finally, to satisfy due process, any alternative means of service must be

“reasonably calculated, under all the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their objections.” Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Alfred E. Mann Living Tr. v.

ETIRC Aviation S.a.r.l., 78 A.D.3d 137, 141 (1st Dep’t 2010) (“Indeed, both New York courts

and federal courts have, upon application by plaintiffs, authorized e-mail service of process as an

appropriate alternative method when the statutory methods have proven ineffective.”).

32. As discussed above, any further attempts to serve Defendant pursuant to the

Hague Convention are not only costly and time consuming, but also impractical. Plaintiff tried

and failed to serve Defendant through the Hague Convention despite the fact that Plaintiff’s

process server made multiple attempts to effectuate service. Any additional attempts will only

waste time and resources. Moreover, there is no guarantee that further attempts via the Hague

Convention will be more successful. Snyder v. Alternative Energy Inc., 19 Misc. 3d 954 (Civ.

Ct. 2008) (granting service on an individual defendant and his company via email pursuant to

CPLR 308(5) and 311(b), due to plaintiff’s inability to locate a current address despite diligent

efforts to do so).

33. By contrast, serving Defendant via email can be accomplished quickly, at

minimal costs, and is reasonably calculated to give Defendant notice of this action. See Makina

10 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

ve Kimya Endustrisi A.S. v. A.S.A.P. Logistics Ltd., No. 22 CV 3933 (PGG), 2022 WL 3018243,

at *4 (S.D.N.Y. July 29, 2022) (“Service by email alone comports with due process where a

plaintiff demonstrates that the email is likely to reach the defendant.”); see also Mattel, Inc. v.

Animefun Store, No. 18 CIV. 8824 (LAP), 2020 WL 2097624, at *5 (S.D.N.Y. May 1, 2020)

(finding email comported with due process where, inter alia, defendant engaged in regular email

communications); Grp. One Ltd. v. GTE GmbH, 523 F. Supp. 3d 323, 345 (E.D.N.Y. 2021)

(finding service via email satisfied due process where defendant communicated with plaintiff’s

counsel via email). As discussed above, prior to the commencement of this action, the parties

regularly communicated about this matter via email. An example of those communications is

annexed hereto as Exhibit 7. Moreover, there is nothing prohibiting alternative service via email.

Renren, Inc. v. XXX, 67 Misc. 3d 1219(A), 127 N.Y.S.3d 702 (N.Y. Sup. Ct. 2020), aff'd sub

nom. Matter of Renren, Inc., 192 A.D.3d 539, 140 N.Y.S.3d 701 (1st Dep’t 2021) (“As the First

Department has explained, ‘while service of process by e-mail is not directly authorized by either

the CPLR or the Hague Convention, it is not prohibited under either state or federal law, or the

Hague Convention, given appropriate circumstances.’”) quoting Alfred E. Mann Living Trust v.

ETIRC Aviation S.a.r.l., 78 AD3d 137, 141 (1st Dept 2010).

34. Out of an abundance of caution, in addition to leave to serve via email, Plaintiff

also requests leave to serve Defendant via overnight mail and by providing copies of the

Summons and Complaint via email and overnight mail to Defendant’s counsel listed in the

Agreement. These additional steps should erase any lingering doubt as to the sufficiency service,

ensuring Defendant has notice of this matter and an opportunity to be heard.

35. No prior application has been made for the relief requested herein.

11 of 12
FILED: NEW YORK COUNTY CLERK 01/19/2024 05:00 PM INDEX NO. 652969/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/22/2024

WHEREFORE, Plaintiff respectfully requests that this Court grant the motion of

Plaintiff Generation Joy LLC in its entirety, and issue an Order:

(a) Extending Plaintiff’s time to serve Defendant with the Summons and

Complaint to 30 days from the entry of the Court’s Order pursuant to CPLR 306-b;

(b) Pursuant to CPLR 311(b), granting Plaintiff leave to serve Defendant by:

(i) sending a copy of the Summons and Complaint to Defendant’s President and CEO, Joon S.

Ryu, by email at joonryu@market7.co.kr; (ii) sending a copy of the Summons and Complaint by

overnight mail to Defendant’s addresses at Woonam Building 2F, Samalro15-Gil22 (Munjung-

dong), Songpa-gu, Seoul, Korea 05801 and 22 Saemal-Ro 15gil, Songpa-Gu, Seoul, Korea

05801; and (iii) sending via overnight mail and email a copy of the Summons and Complaint to

Defendant’s counsel (Kim & Chang, Seyang Building, 39, Sajik-ro 8-gil, Jongno-gu, Seoul,

Korea 03170, jbkim@kimchang.com); and

Dated: New York, New York
January 19, 2024

/s/ David A. Gold
DAVID A. GOLD

12 of 12

For full print and download access, please subscribe at https://www.trellis.law/.

Document for Generation Joy Llc v. Woonam Bio & Environment Co. Ltd.

Preview

Case Info

Parties

Document for Generation Joy Llc v. Woonam Bio & Environment Co. Ltd.

Preview

Related Topics

Case Info

Parties