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Case 1:15-cv-06818-CBA-SMG Document 1 Filed 11/30/15 Page 1 of 14 PageID #: 1

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF NEW YORK
ELVIRA GONZALEZ, individually, and on
behalf of all others similarly situated,

Docket No. ___________________

Plaintiff,

CLASS ACTION COMPLAINT

vs.

JURY TRIAL DEMANDED

UBER TECHNOLOGIES, INC.,


Defendant.

Plaintiff Elvira Gonzalez, individually and on behalf of all others similarly


situated, by her attorneys Simmons Hanly Conroy and Martin Fleisher, J.D. P.C., as and
for her Complaint against Uber Technologies, Inc., alleges on personal knowledge as to
herself and on information and belief as to all other matters as follows:

NATURE OF THE ACTION


1.

This is a class action to recover damages for the willful violation by

Defendant Uber Technologies, Inc. (Uber) of: (a) the federal Telephone Consumer
Protection Act (the TCPA), 47 U.S.C. 227, et seq.; and (b) New Yorks anti-robocalling
statute, General Business Law 399-p. Both statutes place restrictions on the use of
automatically-dialed telephone calls (Robo-Calls), in order to protect recipients from
harassment and unwanted telephone charges. Both statutes impose fines for violations of
their restrictions on Robo-Calls.
2.

During July 2015, Uber placed hundreds of thousands of pre-recorded

Robo-Calls to the home and mobile telephone numbers of New York City residents.
These calls consisted of recorded messages advertising the benefits and advantages of
Ubers services and urging call recipients to oppose an initiative by Mayor Bill de Blasio
and the City Council to limit Ubers growth within New York City.
3.

Uber did not obtain prior express consent of those it called. Nor did it

comply with the restrictions on such calls set forth in the TCPA and in GBL 399-p.
4.

As set forth in detail below, in executing its massive Robo-Calling

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campaign, Uber willfully violated the express provisions of both the TCPA and GBL
399-p. Ubers disregard for the statute was more than incidental or neglectful: at all
relevant times Uber personnel including members of its extensive internal legal
department had actual knowledge of both the existence, and the specific relevant terms
of both the TCPA and the GBL. In fact, on at least two other occasions, Uber has been
sued by putative classes for indiscriminate mass communication campaigns, in violation
of the TCPA and state statutes regulating similar issues.
5.

As described below, Plaintiff received a Robo-Call from Uber that did not

comply with the TCPA or with GBL 399-p. Plaintiff brings this action on her own behalf
and on behalf of all others similarly situated to recover the statutory damages authorized
for these violations.

JURISDICTION AND VENUE


6.

This Court has jurisdiction over this action under the Class Action Fairness

Act (CAFA), 28 U.S.C. 1332(d)(2)(A) because the case is brought as a class action, the
named Plaintiff is a citizen of a State different from any State of which the defendant is a
citizen, and the matter in controversy exceeds the sum or value of $5 million. This action
is not subject to any of the mandatory or discretionary exceptions to CAFA jurisdiction
set forth in 1332(d). This Court also has jurisdiction pursuant to 28 U.S.C. 1331 and
1367, in that Plaintiffs claim under the TCPA arises under the laws of the United States,
and the Court has supplemental jurisdiction over Plaintiffs state-law claim.
7.

Venue is proper in this District because a substantial part of the events or

omissions giving rise to the claim occurred in this District.

PARTIES
8.

Plaintiff Elvira Gonzalez is, and at all relevant times was, a citizen of New

York, residing in Kings County within the City of New York. In or around the summer
of 2015, Gonzalez received one or more Robo-Calls from Uber on her personal cellular
telephone.
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9.

Uber Technologies, Inc. is a corporation organized and existing under the

laws of the State of Delaware, with a principal place of business at 1455 Market Street, 4th
Floor, San Francisco, California 94103.

STATUTORY FRAMEWORK
10.

Under the TCPA, it is unlawful to make any call (other than a call made

for emergency purposes or made with the prior express consent of the called party) using
any automatic telephone dialing system or an artificial or prerecorded voice. . . .(iii) to
any telephone number assigned to. . . a cellular telephone service.
227(b)(1)(A).

47 U.S.C.

It is also unlawful to initiate any telephone call to any residential

telephone line using an artificial or prerecorded voice to deliver a message without the
prior express consent of the called party, unless certain exceptions apply. 47 U.S.C.
227(b)(1)(B).
11.

Section 227(b)(3) of the TCPA provides that recipients of calls placed in

violation of 227(b)(1)(B) are authorized to bring an action to recover, for each violation,
the greater of the monetary loss caused by the violation or $500. If the court finds that
the caller willfully or knowingly placed calls in violation of 227(b), the statute authorizes
the court to impose a penalty of up to $1,000 per violation.
12.

GBL 399-p of the GBL regulates two distinct kinds of phone calls: (a) calls

placed using an automatic dialing-announcing device, i.e., irrespective of the content


of such calls; and (b) consumer telephone calls.
13.

Paragraph 399-p(1)(a) defines the term automatic dialing-announcing

device as any automatic equipment which incorporates a storage capability of phone


numbers to be called and is used, working alone or in conjunction with other equipment,
to disseminate a pre-recorded message to the telephone number called without the use
of an operator.
14.

GBL 399-p(2) provides: No person shall operate an automatic dialing-

announcing device nor place any consumer telephone call except in accordance with the
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provisions of this section.


15.

GBL 399-p(3) provides: Whenever telephone calls are placed through the

use of an automatic dialing-announcing device, such device shall do all of the following:
(a) state at the beginning of the call the nature of the call and the name of the person
on whose behalf the call is being transmitted and at the end of such message the address
and telephone number of the person on whose behalf the message is transmitted .
16.

GBL 399-p also contains a remedy for violations of its provisions. The

statute provides that any person who has received a telephone call in violation of
subdivision three, four or five of this section may bring an action to recover his actual
damages or fifty dollars, whichever is greater, or both such actions. The court may, in its
discretion, increase the actual damages to an amount not to exceed three times the actual
damages, not to exceed one thousand dollars, if the court finds that the defendant
knowingly or willfully violated such subdivisions. Section 399-p(9) also authorizes the
Court to award attorneys fees to a prevailing plaintiff.

FACTS COMMON TO ALL CLAIMS


17.

Uber provides a ridesharing software application (the App) that allows

customers in need of transportation to use their smartphones to request a ride from Uber
drivers (whom Uber refers to as independent, third-party contractors).
18.

Uber takes for itself 35% of every fare initiated in New York City and the

surrounding suburbs.
19.

As of July 8, 2015, according to New York Citys Mayor Bill de Blasio and

the New York City Council, New York Citys streets were clogged with approximately
63,000 For Hire Vehicles (FHVs) (vehicles other than medallion-bearing yellow cabs
that provide ride services for hire), 19,000 of which were Uber cars. To alleviate traffic
congestion in the City, Mayor de Blasio and the City Council proposed an initiative to
cap the growth of all FHVs at 1% annually. The cap on FHVs would apply to Uber cars.
20.

At the time, Uber was reporting growth in the number of New York City
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drivers of 3% monthly, i.e., 36% annually. Under the proposed 1% cap, Uber would have
been allowed to add approximately 200 cars in New York City in the year following the
passage of the measure. Ubers plan was to add more than 7,200 cars during the same
time period and to take 35% of every fare from each new car.
21.

In other words, the economic impact to Uber from the passage of Mayor de

Blasios and the City Councils proposed cap initiative would have been in the hundreds
of millions of dollars during the first year alone, and ultimately well into the billions.
22.

To defeat the proposed initiative, Uber embarked on a massive campaign

across multiple media platforms. Ubers crusade included taking out daily ads in New
Yorks major newspapers and placing enormous billboard ads on the sides and backs of
New York City buses and bus stops.
23.

The campaign also included hundreds of thousands of Robo-Calls to Uber

subscribers in or around July 2015. These calls advertised the benefits of Ubers services,
especially to riders outside Manhattan, and urged recipients to call their City Council
members and ask them to vote against the Mayors initiative. Some or all of the calls were
specifically targeted at recipients outside Manhattan, including recipients in Brooklyn,
Queens, and Staten Island.
24.

Each of the Robo-Calls Uber made to New Yorkers in or around July 2015

was placed using an automatic dialing-announcing device and/or an automatic


telephone dialing system. Calls were placed to phone numbers Uber had on file because
its App required use of a smartphone to contact drivers. These included numbers
assigned to cellular telephone services, as well as residential numbers.
25.

Uber did not obtain express prior consent, orally or in writing, for any of

the Robo-Calls it placed to New Yorkers in or around July 2015.


26.

Each of the Robo-Calls that Uber placed to New Yorkers in or around July

2015 included advertising, in that each call touted Ubers convenience and benefits in
specific contrast to medallion-bearing yellow taxis.
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27.

Each of the Robo-Calls that Uber placed to New Yorkers in or around July

2015 was made for a commercial purpose, in that each call promoted Ubers ride service
as compared to medallion-bearing yellow taxis, and each call was made for the purpose
of preventing the adoption of restrictions on Ubers business in New York City.
28.

None of the Robo-Calls that Uber placed to New Yorkers in or around July

2015 pertained in any way to any election, or to any candidate or issue on which the
recipient of the call would be entitled to vote.
29.

Uber used at least two scripts for the Robo-Calls it placed to New Yorkers

in or around July 2015. Script A, which appears to have been designed for recipients
whose City Council representatives were sponsors of the bill in question, was as follows:
Hi. Its Molly with Uber, and we need your help. Uber ended the days
when you couldnt get a ride home because cabs didnt want to leave
Manhattan. Now Mayor de Blasio is trying to bring the bad old days back
because his millionaire taxi donors are telling him to. But why on earth
would your Council Member ever consider voting for something like this?
They should stand up for you, not take orders from the mayor. Your
council member is sponsoring this bill, and we need your voice. Please call
your council member and tell them to take their names off Mayor de
Blasios anti-Uber bill because you, and all New Yorkers, deserve reliable
transportation. Paid for by Uber-212 257-1745.
30.

Script B, which appears to have been designed for recipients whose City

Council representatives were not necessarily sponsors of the bill in question, was as
follows:
Hi. It's Derrick with Uber, and we need your help. Uber ended the days
when New Yorkers had to worry about being able to find a reliable ride
home; but now, Mayor de Blasio wants to cap the number of drivers that
can partner with us, ending Uber as you know it, just because his
millionaire taxi donors are telling him to. The Daily News has called de
Blasio's cap on Uber quote disingenuous and a bad deal for New Yorkers.
Please call your council member and tell them to oppose the anti-Uber bill,
because they should look out for you, not for the mayor's rich donors. Paid
for by Uber 212-257-1745.
31.

These scripts were used in tens or hundreds of thousands, or more, of Robo-

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Calls placed by Uber to New Yorkers in or around July 2015 using an automatic dialingannouncing device(s) and/or an automatic telephone dialing system.
32.

None of the Robo-Calls that Uber placed to New Yorkers in or around July

2015 included Ubers address, as was required by state law. Each of the calls complied
with the other highly specific requirements of GBL 399-p, such as the requirement that
the calls begin with the name of the person calling (Molly and Derrick), that the call
state the entity on whose behalf the call was being placed (both Molly and Derrick
indicated that they were from Uber), and that the call end with a telephone number
(Paid for by Uber 212 257-1745). In other words, Ubers personnel appeared to have
actual knowledge not only of the existence of legal requirements for its Robo-Calls, but
of the specific requirements and obligations applicable in New York.
33.

By omitting Ubers California address, Ubers calls concealed from (or

failed to remind) recipients that a California-based company was attempting to interfere


with the New York City Council. Inclusion of Ubers California address would have
made obvious to recipients the companys outsider status, its inability to lobby the New
York City Council directly, and the fact that the profits it was seeking to protect would
not accrue to the benefit of a New York-based business.
34.

At the time it placed its Robo-Calls to New Yorkers in or around July 2015,

Uber was well aware of the need to comply with state and federal law in placing
automatically-dialed calls. Ubers violations of the TCPA and of GBL 399-p were, at a
minimum, reckless, because, as alleged above, Uber has been sued at least twice in federal
class actions under the TCPA. Ubers continued violations of law demonstrate the
willfulness of its misconduct.
35.

Plaintiff Elvira Gonzalez is, and was in or around July 2015, an Uber

subscriber. In connection with her subscription, Plaintiff Elvira Gonzalez provided Uber
with her cellular telephone number, associated with the smartphone on which she
installed the Uber App.
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36.

In or about the summer of 2015, Plaintiff Elvira Gonzalez received an

automatically dialed, pre-recorded telephone call from Uber on her cell phone urging her
to contact her City Council representative on Ubers behalf.
37.

Gonzalez had not provided express consent to receive this Robo-Call from

38.

The Robo-Call that Gonzalez received in or about the summer of 2015 did

Uber.

not provide Ubers address.


39.

The Robo-Call that Gonzalez received delivered a message identical or

similar in substance to the messages that used Script A and Script B.


40.

The Robo-Call that Gonzalez received was made for a commercial purpose

in that it contained advertising and was intended to promote Ubers services over the
services of medallion-bearing yellow taxis and to prevent the adoption of restrictions on
Ubers business in New York City.

CLASS ACTION ALLEGATIONS


41.

Plaintiffs bring this action on behalf of herself and all others similarly

situated (the Class) pursuant to Rule 23 of the Federal Rules of Civil Procedure. The
Class is initially defined as:
All persons in New York City who received calls placed by Uber in or
around July 2015 on their home and/or personal mobile phones urging
them to contact their City Council representative or otherwise referencing
proposals to restrict the growth in the number of for-hire vehicles in New
York City.
42.

Excluded from the Class are entities in which Uber has a controlling

interest, the officers or directors of Uber, and their counsel. Plaintiffs reserve the right to
modify the Class definition based on the results of discovery and/or rulings of the Court.
43.

This action may be properly maintained as a class action pursuant to Rule

23 of the Federal Rules of Civil Procedure.


44.

The Class is ascertainable and is so numerous that joinder of all members is

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impracticable. Plaintiff does not know the exact number of class members, but believes
that the proposed class includes tens, if not hundreds, of thousands of members. It is
possible that the identity of Class members can be determined or confirmed in the
business records and other documents in the possession of the Defendant.
45.

There are questions of law and fact common to the claims of all class

members. These common questions predominate over any individual questions that may
exist.
46.

The common questions include:


a. Whether the calls that members of the Class received were placed by an
automatic telephone dialing system, within the meaning of the federal
Telephone Consumer Protection Act, or an automatic dialing-announcing
device, within the meaning of N.Y. G.B.L. 399-p.
b. Whether the calls that Uber placed to members of the Class used one or
more pre-recorded scripts;
c. Whether the pre-recorded scripts Uber used in placing calls to members of
the Class included Ubers address in the call message;
d. Whether Ubers calls to members of the Class were made for a commercial
purpose;
e. Whether Ubers calls to members of the Class complied with the provisions
of the TCPA;
f. Whether Ubers calls to members of the Class complied with G.B.L. 399p; and
g. Whether in placing calls to members of the Class, Uber willfully or
knowingly violated G.B.L. 399-p and/ the TCPA.

47.

The claims of the representative Plaintiff are typical of the claims of the

members of the Class. The representative Plaintiff and the members of the Class all
received Robo-Calls made by Uber that employed one or more pre-recorded scripts that
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did not comply with the TCPA and/or with G.B.L. 399-p. The representative Plaintiff
seeks statutory damages, which are the same damages available to all members of the
Class.
48.

The representative Plaintiff will fairly and adequately represent and protect

the interests of the Class and has retained counsel who are experienced and competent
trial lawyers in complex and class action litigation. There are no material conflicts
between the claims of the representative Plaintiffs and the members of the Class that
would make class certification inappropriate. Counsel for the Class will vigorously assert
the claims of all members of the Class.
49.

This suit may be maintained as a class action under Federal Rule of Civil

Procedure 23(b)(3) because questions of law and fact common to the Class predominate
over the questions affecting only individual members of the Class and a class action is
superior to other available means for the fair and efficient adjudication of this dispute.
The statutory damages suffered by individual class members are small compared to the
burden and expense of individual prosecution of this case. Even if members of the Class
themselves could afford such individual litigation, the court system would be
overwhelmed by the individual lawsuits. In addition, individualized litigation would
increase the delay and expense to all parties and to the court system. Individualized
litigation also presents a potential for inconsistent or contradictory judgments. By
contrast, the class action device presents far fewer management difficulties; allows the
hearing of claims which might otherwise go unaddressed because of the relative expense
of bringing individual lawsuits; and provides the benefits of single adjudication,
economies of scale, and comprehensive supervision by a single court.

CLAIMS FOR RELIEF


FIRST CLAIM FOR RELIEF
Violation of TCPA, 47 U.S.C. 227
50.

Plaintiff repeats, re-alleges, and incorporates by reference each and every

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allegation set forth in 1-49, as if fully set forth herein.


51.

Each of the Robo-Calls placed to Plaintiff and to the members of the Class

in or around July 2015 was placed using an automatic telephone dialing system within
the meaning of 47 U.S.C. 227(a)(1).
52.

Each of the Robo-Calls placed to Plaintiff and to the members of the Class

in or about July 2015 was made to a telephone number assigned to a cellular telephone
service or to a residential telephone line.
53.

Each of the Robo-Calls placed to Plaintiff and to the members of the Class

in or about July 2015 used a prerecorded voice to deliver a message.


54.

Each of the Robo-Calls placed to Plaintiff and to the members of the Class

in or about July 2015 was made without the prior express consent of the called party.
55.

Each of the Robo-Calls placed to Plaintiff and to the members of the Class

in or about July 2015 was made for a commercial purpose, specifically for the purpose of
promoting Ubers business in New York over medallion-bearing yellow taxis and for the
purpose of preventing the adoption of restrictions on Ubers business in New York City.
56.

Each of the Robo-Calls placed to Plaintiff and to the members of the Class

in or about July 2015 was in violation of the Telephone Consumer Protection Act, 47
U.S.C. 227.
57.

By reason of the foregoing, Uber is liable to Plaintiff and to each member of

the Class for $500 for each violation, in a total amount to be determined at trial, but not
less than $500,000,000.
58.

In making the Robo-Calls to the Plaintiff and to the members of the Class in

or about July 2015 in violation of the TCPA, Uber acted willfully and knowingly, in that
Uber had been previously sued for similar violations and thus was aware of the
requirements of the TCPA, but chose to ignore them. For this reason, this Court should
increase the amount of the award to $1,500 per violation, in accordance with the
provisions of the TCPA.
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59.

Plaintiff and the members of the Class are also entitled to an injunction

precluding Uber from placing future calls in violation of the TCPA.


SECOND CLAIM FOR RELIEF
Violation of N.Y. G.B.L. 399-9
60.

Plaintiff repeats, re-alleges, and incorporates by reference each and every

allegation set forth in 1-59, as if fully set forth herein.


61.

Each of the Robo-Calls placed to Plaintiff and to the members of the Class

in or around July 2015 was placed using an automatic dialing-announcing device,


within the meaning of 399-p(1)(a) of the GBL.
62.

None of the Robo-Calls placed to Plaintiff and to the members of the Class

in or about July 2015 stated at any point during the call the address of the person on
whose behalf the message was transmitted.
63.

Each of the Robo-Calls placed to Plaintiff and to the members of the Class

in or about July 2015 was in violation of G.B.L. 399-p(3)(a).


64.

By reason of the foregoing, Uber is liable to Plaintiff and to each member of

the Class for $50 for each violation, in a total amount to be determined at trial, but not
less than $50,000,000.
65.

In making the Robo-Calls to the Plaintiff and to the members of the Class in

or about July 2015 in violation of GBL 399-p, Uber acted willfully and knowingly, in
that Uber had been previously sued for similar violations of state law and thus was aware
of the requirements of need to comply with state law in making Robo-Calls. In addition,
the pre-recorded message that Uber delivered with the Robo-Calls it made to the Plaintiff
and to the members of the Class in or around July 2015 included some, but not all, of the
information required by G.B.L. 399-p, suggesting that Uber was aware not only of the
need to comply with state law generally, but also of the specific requirements of G.B.L.
399-p, but nonetheless failed to comply with all of the requirements. For this reason,
this Court should increase the amount of award to $1,000 per violation, in accordance
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with the provisions of 399-p(9).


66.

Plaintiff and the members of the Class are also entitled to an injunction

precluding Uber from placing future calls to New Yorkers in violation of 399-p.
WHEREFORE Plaintiff and the members of the Class pray for judgment as follows:
A. Certifying this class as a class action pursuant to Rule 23 of the Federal Rules
of Civil Procedure, designating Plaintiff Elvira Gonzalez as the class
representative, and appointing the undersigned counsel as Class Counsel;
B. Enjoining Uber from placing telephone calls in violation of the TCPA;
C. Enjoining Uber from placing telephone calls to residents of New York in
violation of G.B.L. 399-p;
D. Awarding statutory damages under the TCPA in the amount of $500 per
violation, and trebling such damages for a total of $1,500 per violation, in total
amount of not less than $500,000,000;
E. Awarding statutory damages under G.B.L. 399-p in the amount of $50 per
violation, and increasing such award to $1,000 per violation, in a total amount
of not less than $500,000,000;
F. Awarding reasonable costs and fees of this action, including, but not limited
to, attorneys fees pursuant to G.B.L. 399-p; and
G. Awarding such other and further relief as this Court may deem just and
proper.

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JURY DEMAND
Plaintiff hereby demands trial by jury of all claims so triable.
Dated: New York, New York
November 30, 2015

Of Counsel:
Martin Fleisher
MARTIN FLEISHER, J.D, P.C.
7 Times Square, 27th floor
New York, New York 10036-6516

SIMMONS HANLY CONROY


By: /s/ Andrea Bierstein
Andrea Bierstein
abierstein@simmonsfirm.com
Mitchell Breit
mbreit@simmonsfirm.com
SIMMONS HANLY CONROY
112 Madison Ave., 7th floor
New York, New York 10016
Phone: (212) 784-6400

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CIVIL COVER SHEET

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Case 1:15-cv-06818-CBA-SMG Document 1-1 Filed 11/30/15 Page 2 of 2 PageID #: 16


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Case 1:15-cv-06818-CBA-SMG Document 1-2 Filed 11/30/15 Page 1 of 2 PageID #: 17


AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT


for the

Eastern District
of of
New
York
__________
District
__________
ELVIRA GONZALEZ, individually, and on behalf of all
others similarly situated,

Plaintiff(s)

v.
UBER TECHNOLOGIES, INC.,

Defendant(s)

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No.

SUMMONS IN A CIVIL ACTION


To: (Defendants name and address) Uber Technologies, Inc.
1455 Market Street, 4th Floor,
San Francisco, California 94103

A lawsuit has been filed against you.


Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are: Andrea Birstein
abierstein@simmonsfirms.com
SIMMONS HANLY CONROY
112 Madison Avenue
New York, NY 10016
Telephone (212) 784-6400

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

%06(-"4$1"-.&3
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk

Case 1:15-cv-06818-CBA-SMG Document 1-2 Filed 11/30/15 Page 2 of 2 PageID #: 18


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.


PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)

u I personally served the summons on the individual at (place)


on (date)

; or

u I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)

, and mailed a copy to the individuals last known address; or


, who is

u I served the summons on (name of individual)


designated by law to accept service of process on behalf of (name of organization)
on (date)

; or

u I returned the summons unexecuted because

; or

u Other (specify):
.
My fees are $

for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:
Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

0.00