In the Matter of a Mail Dispute Between

REX HUTTON
          and
SEAN HOYT

P.S. Docket No. MD 09-56

APPEARANCE FOR DISPUTANT
REX HUTTON:
Adam Pugh, Esq.

APPEARANCE FOR DISPUTANT
SEAN HOYT:
Aimee Minnich, Esq.

INITIAL DECISION

            Mail Dispute MD 09-56 has been docketed pursuant to Postal Operations Manual § 616.21 under the procedures established at 39 CFR Part 965.  The disputants are Rex Hutton and Sean Hoyt, both of whom claim the right to control the business affairs of a company named S2000 Field Service Solutions, LLC (hereafter “the LLC”), and therefore to receive mail addressed to the LLC, at P.O. Box 758, Warsaw, Missouri, 65355-0758.  The Postmaster of Warsaw, Missouri has been directed to hold the mail so addressed.

FINDINGS OF FACT

1. This mail dispute was forwarded to the Judicial Officer by a designee of the Postal Service Chief Field Counsel.  A Notice of Docketing and Submittal Due Date, issued on February 19, 2009, required submittals by the parties in support of their respective positions by March 13, 2009.  Following a telephone conference with counsel for both parties conducted by the undersigned Administrative Judge, the deadline for the parties’ submissions was extended until March 20, 2009 (Order of February 23, 2009).
2. On March 19, 2009, through counsel, Mr. Hoyt submitted an affidavit and documents in support of his position.  Mr. Hutton did not submit a sworn statement or any supporting document, but he did submit an undated and unsworn faxed letter to the Judicial Officer.
3. Mr. Hoyt has been a member of the LLC since it was organized in 1996 (Affidavit of S. Hoyt (Hoyt Aff.) ¶ 2).
4. Mr. Hoyt was the Manager of the LLC until 2006, when he resigned as Manager but not as member of the LLC.  Thereafter, the members elected Mr. Hutton as Manager.  (Hoyt Aff. ¶ 4).
5. The application for the post office box in question was submitted in 2006 by Mr. Hutton on behalf of S2000 Field Service Solutions, and another entity (Attachment to February 5, 2009 Referral Letter from Chief Field Counsel).
6. On January, 21, 2009, a majority of the membership interests of the LLC voted by written consent to remove Mr. Hutton as Manager, and re-appoint Mr. Hoyt as Manager (Hoyt Aff. ¶ 6).  The written consent was signed in multiple counterparts by a majority of the LLC members representing a majority interest of the LLC (Agreement and Written Consent, attached to Hoyt Aff. (Agreement and Consent)).  Although the counterparts of the Agreement and Consent include certain disagreements about the details of the document, they agree on the removal of Mr. Hutton as Manager and his replacement by Mr. Hoyt (Agreement and Consent).
7. Since his re-appointment as Manager, Mr. Hoyt has been managing the affairs and finances of the LLC (Hoyt Aff. ¶ 11).
8. Notwithstanding his removal as Manager in January 2009, on February 6, 2009, Mr. Hutton resigned as Manager of the LLC (Hoyt Aff. ¶ 10; Letter by Mr. Hutton, attached to submission by counsel for Mr. Hoyt dated February 12, 2009). 
9. The operating agreement of the LLC[1] vests its Manager with the authority, among other things, to change the address of the LLC, to carry on the day-to-day business of the LLC, to execute and file any documents and to perform any acts appropriate to carry out the LLC’s purpose (Operating Agreement attached to Hoyt Aff., §§ 1.4, 4.2, 7.3).
10. After Mr. Hoyt was re-appointed as Manager of the LLC, through counsel he requested that mail addressed to the LLC at the post office box in issue, P.O. Box 758, Warsaw, Missouri, 65355-0758, be forwarded to Mr. Hoyt at the new address of the LLC, P.O. Box 1067, Elephant Butte, New Mexico 87935 (February 12, 2009 Letter; March 19, 2009 Letter by counsel for Mr. Hoyt).

DECISION

            The procedures for resolution of mail disputes require submission by the disputants to the Judicial Officer of sworn statements and documents in support of their respective positions.  See 39 CFR § 965.5; Notice of Docketing and Submittal Due Date.  A party failing to file the submittal required by § 965.5 may be held in default, and the presiding officer may issue an initial decision that mail be delivered to the other disputant.  See 39 CFR § 965.7; Notice of Docketing and Submittal Due Date.  Here, Mr. Hutton failed to submit a sworn statement, or supporting documents[2] (Finding of Fact 2).  This is sufficient to find Mr. Hutton in default and to rule in favor of Mr. Hoyt.  In addition, Mr. Hoyt has submitted evidence I find to be sufficient to rule in his favor.

            The parties dispute the composition of the ownership of the LLC.  Mr. Hutton claims that he controls a majority of the LLC (Undated fax by Mr. Hutton; February 11, 2009 Letter by Mr. Hoyt to Members of the LLC, attached to Mr. Hoyt’s sworn submission), while Mr. Hoyt and the other members of the LLC deny that Mr. Hutton has any voting rights, much less a majority.  (Hoyt Aff. ¶¶ 8-9; February 11, 2009 Letter).  Based on the evidence submitted, I have found that a majority of the membership of the LLC removed Mr. Hutton as Manager, and replaced him with Mr. Hoyt (Finding of Fact 6).  Moreover, it is uncontested on this record that even were that action not legally effective, Mr. Hutton resigned as Manager on February 6, 2009 (Finding of Fact 8).  Following that resignation, Mr. Hutton ceased to retain a legal right to direct the affairs of the LLC, which I find to include the ability to direct delivery of mail addressed to the LLC (Finding of Fact 9).  Conversely, as Manager, Mr. Hoyt is entitled to direct delivery of the mail addressed to the LLC, (Findings of Fact 6-7, 9-10), and I find that the request by his attorney (Finding of Fact 10) is sufficient to redirect the LLC’s mail.

            This initial decision therefore recommends that the Judicial Officer issue an order directing that the Warsaw, Missouri Postmaster release and deliver all previously held mail, and all mail received in the future addressed to S2000 Field Service Solutions, LLC, at P.O. Box 758, Warsaw, Missouri, 65355-0758, to Mr. Hoyt, at P.O. Box 1067, Elephant Butte, New Mexico 87935.

            This decision only determines the right to delivery of the mail in dispute, and not ownership of the contents of such mail, nor does it attempt to resolve any other business dispute between the parties.  If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order.  Postal Operations Manual § 616.3.

Gary E. Shapiro
Administrative Judge

[1] The operating agreement in the record of this proceeding is unsigned and does not include indicia of registration with the state of Michigan under the laws of which the LLC was formed.  The record also does not include the articles of incorporation of the LLC.  However, the unsigned operating agreement is the best evidence available in the record, and its accuracy was not contested by Mr. Hutton.  I therefore rely on it.

[2] The relevant portion of the undated faxed letter by Mr. Hutton merely recites that there is a dispute as to ownership of the majority of the LLC.