Norwood v. Salvatore

10 Citing cases

  1. Sail v. George

    Civil Action 2:20-cv-214-cr-kjd (D. Vt. Feb. 4, 2022)

    See Rashada v. City of Buffalo, No. 11CV873A, 2013 WL 474751, at *3 n.3 (W.D.N.Y. Feb. 6, 2013) (stating that the Second Circuit "has not.. . addressed" issue of whether service of a defendant sued in his or her official capacity must be made under Rule 4(j), and noting that "other courts have held that state officials must be served under Rule 4(e) even when sued in their official capacity"); see also Stoianoffv. Comm 'r of Motor Vehicles, 208 F.3d 204, 2000 WL 287720 (Table), at *1 (2d Cir. 2000) (reviewing whether service on government defendant was proper under Rule 4(j) and observing that service "may be effected pursuant to Rule 4(e), which provides for service upon individuals generally"); El Ex-Relatione Dawes v. Whitehead, No. 3:18-CV-02033 (CSH), 2019 WL 5394578, at *4 (D. Conn. Oct. 22, 2019) (applying both Rule 4(e) and 4(j)); Norwood v. Salvatore, No. 3:12-CV-1025 MAD/DEP, 2013 WL 1499599, at *4 (N.D.N.Y.Apr. 10, 2013) (applying Rule 4(j) to service of process on town "Code Enforcement Officer" sued in his official capacity). Given the lack of clarity on the issue, this Report and Recommendation analyzes whether Sail complied with either Rule 4(e) or 4(j) as to his service of process on George in her official capacity.

  2. George v. Roberts

    No. 17-CV-3684 (CS) (S.D.N.Y. Mar. 26, 2018)   Cited 4 times

    Therefore, because there is no proof that Plaintiff served Roberts, all claims against him in his individual capacity are dismissed pursuant to Rule 12(b)(5). See Norwood v. Salvatore, No. 12-CV-1025, 2013 WL 1499599, at *4 (N.D.N.Y. Apr. 10, 2013) (dismissing claims against municipal officer in individual capacity for failure to serve).

  3. Syfert v. City of Rome

    6:17-cv-0578 (GTS/TWD) (N.D.N.Y. Aug. 7, 2017)   Cited 9 times

    A claim for malicious prosecution accrues when there is a "favorable termination of criminal proceedings" against the plaintiff. Norwood v. Salvatore, No. 3:12-CV-1025 (MAD/DEP), 2013 WL 1499599, at *15 (Apr. 10, 2013) (citations omitted). "Ordinarily, a claim for abuse of process accrues at such time as the criminal process is set in motion—typically at arrest—against the plaintiff."

  4. Nardiello v. Town of Oyster Bay

    CV 15-292 (E.D.N.Y. Apr. 12, 2016)   Cited 3 times
    Dismissing procedural due process claim arising from refusal to act on and denial of building permit due to availability of Article 78 proceeding

    Thus, there was no "clear entitlement" and no property interest. Plaintiffs cite Norwood v. Salvatore, 12-CV-1025, 2013 WL 1499599 (N.D.N.Y. April 10, 2013), which does not discuss the Second Circuit decision in C.C.S.com, and relies on Hampton Bays Connections, Inc. V. Duffy, 127 F.Supp.2d 364 (E.D.N.Y. 2001). In reviewing a motion to dismiss, the Court in Hampton Bays found plaintiffs had sufficiently stated a property interest in a building permit where the town code directed that the building official "shall" issue the permit if the plans meet the relevant regulations and ordinances.

  5. Labombard v. Winterbottom

    8:14-cv-00071 (MAD/CFH) (N.D.N.Y. Nov. 25, 2014)

    When a defendant moves to dismiss a complaint under Rules 12(b)(5) and 12(b)(6), the court must address the arguments concerning proper service of process before the arguments as to the alleged failure to state a claim. Norwood v. Salvatore, No. 3:12-CV-1025, 2013 WL 1499599, *2 (N.D.N.Y. Apr. 10, 2013). "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied."

  6. Troeger v. Ellenville Cent. Sch. Dist.

    1:12-cv-1882 (DNH/CFH) (N.D.N.Y. Mar. 31, 2014)   Cited 2 times

    Courts maintain the discretion to excuse a plaintiff's failure to serve the complaint within this 60 day deadline, as long as the plaintiff serves it within Rule 4(m)'s 120 day deadline. Tanner, 2013 WL 4424979, at *4; see also Norwood v. Salvatore, No. 12-CV-1025, 2013 WL 1499599, at *3 (N.D.N.Y. Apr. 10, 2013) (D'Agostino, J.); Edsell v. Indep. Freightway, No. 94-CV-0227, 1995 WL 375827, at *2-3 (N.D.N.Y. June 16, 1995) (Pooler, J.), aff'd on other grounds, 101 F.3d 681 (2d Cir. 1996). III. DISCUSSION

  7. Oxman v. Downs

    999 F. Supp. 2d 404 (E.D.N.Y. 2014)   Cited 14 times
    Holding that "evidence outside of the Complaint may not be considered by the Court when deciding a motion to dismiss"

    Since the Second Circuit's decision in Swartz, at least one district court, in an attempt to reconcile Swartz with Burg, has summarized the Second Circuit's position on this issue as follows: “[W]hile the issuance of a pre-arraignment, non-felony summons that merely requires a later court appearance does not constitute a Fourth Amendment seizure, the requirement that a plaintiff appear in court, post-arraignment, in connection with criminal proceedings, does constitute a Fourth Amendment seizure.” MacPherson, 2013 WL 6058202, at *5. Other district courts have ignored Swartz and have continued relying on Burg, such as in Norwood v. Salvatore, 3:12–CV–1025 MAD/DEP, 2013 WL 1499599 (N.D.N.Y. Apr. 10, 2013), where the court found that the “plaintiffs have failed to plead a ‘seizure’ to satisfy the constitutional element” of a federal malicious prosecution claim, because they did not “specify the number of court appearances made in connection with the charge” and “[t]here [was] no evidence that [the] plaintiffs were required to post bail, or that their ability to travel was limited.” Id. at *14; see also Beck v. City of New York, 12 CIV. 9231 RA, 2014 WL 80544, at *2 (S.D.N.Y. Jan. 3, 2014) (“[T]he Circuit has since reaffirmed Burg, and concluded that a summons requiring even multiple court appearances did not rise to the level of a seizure.

  8. Tanner v. Lowe's Home Ctr., Inc.

    5:11-CV-1454 (GTS/ATB) (N.D.N.Y. Aug. 14, 2013)   Cited 1 times

    However, the Court possesses the discretion to excuse a plaintiff‘s failure to serve process within this 60-day deadline, as long as the plaintiff serves process within the 120-day deadline imposed by Fed. R. Civ. P. 4(m). See, e.g., Edsell v. Indep. Freightway, 94-CV-0227, 1995 WL 375827, at *2-3 (N.D.N.Y. June 16, 1995) (Pooler, J.), aff’d on other grounds, 101 F.3d 681 (2d Cir. 1996); Norwood v. Salvatore, 12-CV-1025, 2013 WL 1499599, at *3 (N.D.N.Y. Apr. 10, 2013) (D'Agostino, J.). The Court should exercise this discretion if "there is any decent ground in the picture at all to explain the delay."

  9. Martinez v. O'Leary

    1:11-CV-1405 (ENV)(JO) (E.D.N.Y. Jun. 28, 2013)

    When a suit is brought "against a governmental officer as an individual, rather than as an official, then service of the papers on the chief executive officer of the governmental entity will be insufficient to confer jurisdiction over the individual, who must be served as would any other individual defendant." C. Wright & A. Miller, Federal Practice and Procedure § 1109 at 45-46; see also Norwood v. Salvatore, 2013 WL 1499599 (N.D.N.Y. 2013); Polite v. Town of Clarkstown, 60 F. Supp. 2d 214 (S.D.N.Y. 1999). Martinez has not filed proof of service upon the individually-named defendants in their individual capacity as is required by Rule 4(1)(1). Nor has she in any way contested defendants' argument, fortified by the absence of individual service, that the individual defendants have been sued solely in their official capacity.

  10. Waldron v. Milana

    5:10-CV-0065 (GTS/DEP) (N.D.N.Y. Jun. 5, 2013)   Cited 3 times
    Declining to award a default judgment on a defamation claim where the facts alleged were “not sufficient to state a claim” because the alleged injury occurred outside of the limitations period

    The statute of limitations under New York law for a claim of malicious prosecution is one year and accrues when there is a favorable termination of criminal proceedings against the plaintiff. See Norwood v. Salvatore, No. 12-CV-1025, 2013 WL 1499599, at *15 (N.D.N.Y. Apr. 10, 2013) (citing N.Y. C.P.L.R. § 215(3); Roman v. Comp USA, Inc., 832 N.Y.S.2d 270, 38 A.D.3d 751 (N.Y. App. Div. 2007)). 2. Slander, Libel and Defamation