Opinion
02 Civ. 3629 (RCC)
October 12, 2004, Decided . October 12, 2004, Filed
For Ronald Pearson, John Holder, Richard Williams, Plaintiffs: Rudolph Silas, Brooklyn, NY.
For The Board of Education of The City of New York, The City of New York, Omar Ayed, Judith Butcher, Nathalie McFarlane, W. L. Sawyer, Granger B. Ward, Robert Mastruzzi, Stephen A. Mitchell, Harold Levy, Chancellor of the Board of Education, Defendants: Deborah Sharp, Corporation Counsel, City of New York, New York, NY.
MEMORANDUM & ORDER
RICHARD CONWAY CASEY, United States District Court Judge:
Plaintiffs Ronald Pearson, John Holder, and Richard Williams bring this employment discrimination action under 42 U.S.C. § 1983, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964 against ten defendants--the Board of Education of the City of New York and Harold Levy as Chancellor of the Board of Education, the City of New York, Robert Mastruzzi, Stephen A. Mitchell, Dr. Omar Ayed, W.L. Sawyer, Granger B. Ward, Judith Butcher, and Nathalie McFarlane--alleging race-based discrimination against them while they were employed as teachers at A. Philip Randolph Campus High School from 1997 to 2000. Six individually named defendants--(1) Robert Mastruzzi, (2) Stephen A. Mitchell, (3) W.L. Sawyer, (4) Granger B. Ward, (5) Judith Butcher, and (6) Nathalie McFarlane (all current or former employees of the Department of Education) ("Defendants")--move to dismiss the claims against them for insufficient service of process in accordance with Federal Rules of Civil Procedure 4(m) and 12(b)(5). For the following reasons, Defendants' motion to dismiss is GRANTED.
Former Chancellor of the Board of Education Harold Levy is being sued in his official capacity only. Dr. Omar Ayed has not, by his counsel or otherwise, asserted that service upon him was insufficient. On May 22, 2003, the New York City Law Department confirmed that it had declined to represent Dr. Ayed in this action. Neither the Board of Education nor the City contests service of process.
Plaintiffs Ronald Pearson, John Holder, and Richard Williams--all African-American men--resigned from their teaching positions in the Social Studies Department at A. Philip Randolph Campus High School after a period of alleged harassment and a hostile work environment created by Dr. Omar Ayed, who was Assistant Principal of Social Studies during the period in question. Plaintiffs filed a complaint with this Court on May 10, 2002. On September 27, 2002, the New York City Law Department--on behalf of the City of New York and the Board of Education--served Plaintiffs' counsel with an answer to the complaint. The New York City Law Department--on behalf of six individually named defendants--now moves to dismiss Plaintiffs' complaint on the ground that service was not properly made. Plaintiffs have filed return-of-service affidavits with the Court for five of the six defendants who now move to dismiss, as well as other affidavits setting out the details of service. The Court now reviews service for each of the six moving Defendants.
1. Robert Mastruzzi
Plaintiffs assert in the return-of-service affidavit filed August 22, 2003 that Defendant Robert Mastruzzi was (1) "personally served" on May 31, 2002 at 122 Amsterdam Avenue, New York, New York and (2) "served" via Federal Express. Counsel for Plaintiffs allege that they delivered a copy to Mr. Mastruzzi's secretary at the Office of the Superintendent at Martin Luther King, Jr. High School, 122 Amsterdam Avenue, New York, New York on May 31, 2002. Mr. Mastruzzi alleges that he has worked only part-time as a consultant for the Board of Education since his retirement in 1992, did not have a secretary in 2002, and was in California on May 31, 2002. On May 31, 2002, a copy of the summons and complaint was delivered to Mr. Mastruzzi via Federal Express to the Office of the Superintendent at Martin Luther King, Jr. High School, 122 Amsterdam Avenue, New York, New York.
2. Steven A. Mitchell
Plaintiffs assert in the return-of-service affidavit filed August 22, 2003 that Defendant Stephen A. Mitchell, Director of the Office of Equal Employment Opportunity of the Board of Education, was (1) "personally served" on May 31, 2002 at 65 Court Street, Brooklyn, New York and (2) "served" via Federal Express. Counsel for Plaintiffs allege that they delivered copies to Mr. Mitchell's secretary at 65 Court Street, Brooklyn, New York on May 31, 2002 at approximately 12:00 noon, although Mr. Mitchell's secretary denies this and the log book for the office does not indicate that Plaintiff's counsel appeared at the office on that date. On May 31, 2002, a copy of the summons and complaint was delivered to Mr. Mitchell via Federal Express to the Board of Education, 65 Court Street, Brooklyn, New York.
3. W.L. Sawyer
Plaintiffs assert in the return-of-service affidavit filed August 22, 2003 that Defendant W.L. Sawyer was (1) "personally served" on May 29, 2002 at 122 Amsterdam Avenue, New York, New York and contend that, although no receipt is available, Mr. Sawyer was (2) "served" via Federal Express. Counsel for Plaintiffs contends that on May 29, 2002 a copy of the summons and complaint was left for Mr. Sawyer with an unidentified person at the Office of the Superintendent at 122 Amsterdam Avenue, New York, New York.
4. Granger B. Ward
Plaintiffs assert in the return-of-service affidavit filed August 22, 2003 that Defendant Granger B. Ward was (1) "personally served" on May 29, 2002 at 122 Amsterdam Avenue, New York, New York, and file a receipt to indicate that Mr. Ward was (2) "served" via Federal Express. Counsel for Plaintiffs contends that on May 29, 2002 a copy of the summons and complaint was left for Mr. Ward with an unidentified person (not Mr. Ward) at the Office of the Superintendent at 122 Amsterdam Avenue, New York, New York. On May 31, 2002, one copy of the summons and complaint for Defendant Granger B. Ward was delivered via Federal Express delivery to the Office of the Superintendent at 122 Amsterdam Avenue, New York, New York. Mr. Ward contends that he has been living and working in San Diego, California since July 1999.
5. Judith Butcher
Plaintiffs assert in the return-of-service affidavit filed August 22, 2003 that Defendant Judith Butcher, Principal of A. Philip Randolph Campus High School, was "personally served" with a copy of the summons and complaint on May 29, 2002 at A. Philip Randolph Campus High School. Yet Plaintiffs concede that they did not personally hand Ms. Butcher a copy of the summons and complaint, but rather delivered the copy to Ms. Butcher's secretary.
6. Nathalie McFarlane
Plaintiff has not filed a return-of-service affidavit with the Court to indicate that any attempt at service was made for Defendant Nathalie McFarlane, who previously served as Principal of A. Philip Randolph Campus High School but retired from the Board of Education in August 1999.
II. DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of an action against defendant for whom service of process was not timely effected in accordance with Federal Rule of Civil Procedure 4(m), which provides:
[if] service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time, provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). Federal Rule of Civil Procedure 4(e) provides that service on an individual within the United States may be made by (1) personally delivering a copy of the summons and complaint to the individual; (2) leaving copies at the individual's home; (3) delivering a copy to an agent authorized by appointment or law to receive process; (4) mailing a copy of the summons and complaint according to the procedure set out in Rule 4(d); or (5) in the manner prescribed by the law of the state in which the district court is located.
The law of the State of New York, for purposes of Rule 4(e)(1), allows for four methods of personal service on an individual, including "delivering the summons within the state to the person to be served" under CPLR § 308(1) and "leave and mail" service under CPLR § 308(2), which involves:
delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing . . . .
CPLR § 308(2) (McKinney's) (emphasis added).
The complaint in this case was filed on May 10, 2002, and the deadline for service of the individually named defendants was therefore 120 days after that date. See Fed. R. Civ. P. 4(m). The deadline for service has passed, discovery has closed, and several months have passed since Plaintiffs were put on notice that Defendants had specific objections to Plaintiffs' service of process. Valid service of process is a prerequisite to this Court's exercise of personal jurisdiction over Defendants. Omni Capital Int'l, Ltd. v. Rudolph Wolff & Co., 484 U.S. 97, 104, 98 L. Ed. 2d 415, 108 S. Ct. 404 (1987).
Plaintiffs now bear the burden of proving proper service upon Defendants. Johnson v. Quik Park Columbia Garage Corp., 1995 U.S. Dist. LEXIS 5824, No. 93 Civ. 5276, 1995 WL 258153, at *1 (S.D.N.Y. May 2, 1995) ("According to both federal and state law, once a defendant has raised a bona fide question as to the propriety of service, the burden of proving proper service rests with plaintiff."); Rates Tech., Inc. v. UTT Corp., 1995 U.S. Dist. LEXIS 2348, 94 Civ. 0326, 1995 WL 86264, at *1 (S.D.N.Y. March 2, 1995) ("When a defendant challenges the sufficiency of service, plaintiff has the burden to show that service was sufficient.").
B. The Individually Named Defendants
1. Robert Mastruzzi, Stephen A. Mitchell, Granger B. Ward, and W.L. Sawyer
Plaintiffs attempted to serve Robert Mastruzzi, Stephen A. Mitchell, Granger B. Ward, and W.L. Sawyer by a combination of (1) leaving a copy of the summons and complaint with each defendant's secretary or another person at their place of business and (2) sending a copy of the summons and complaint via Federal Express. Because Plaintiffs do not claim to have served these four defendants by personally delivering copies of the summons and complaint to them, leaving copies at their homes, delivering copies to an agent authorized to receive process, or following the federal procedure for service by mail (including, for instance, defendants' completion of forms waiving personal service), New York law provides the only possible basis for Plaintiffs' argument that these four defendants were properly served.
Leaving a copy of the summons and complaint with an individual's secretary when the individual is not present does not constitute personal service under CPLR § 308(1). Johnson, 1995 U.S. Dist. LEXIS 5824, 1995 WL 258153, at *2 ("New York courts view service on a receptionist as ineffective service on an individual when that individual is not present in the reception room at the time such service is made."). Further, although CPLR § 308(2)--New York's "leave and mail" provision--allows plaintiffs to serve an individual defendant by delivering a copy of the summons and complaint within the state to a person at the "actual place of business" of the person to be served, such service is not complete until a copy of the summons and complaint is also, within 20 days, sent by first-class mail in a specially marked envelope. The Court need not even reach the question whether delivery to these defendants was at their "actual place of business" at the time of the alleged service because Plaintiffs do not allege that they undertook the second requisite step of sending the summons and complaint via first-class mail at all, and have not filed proof of such service with the Clerk of the Court. Sending a copy of the summons and complaint via an overnight-mail courier such as Federal Express does not fulfill the second step of the "leave and mail" provision. See McCray v. Petrini, 212 A.D.2d 676, 622 N.Y.S.2d 815, 816 (App. Div. 1995) ("it is well-established that CPLR 308(2) requires strict compliance"); see also Olympus Corp. v. Dealer Sales & Service, Inc., 107 F.R.D. 300, 305 (E.D.N.Y. 1985) ("New York law does not expressly authorize service by an express delivery service such as Federal Express."). Therefore, service on Robert Mastruzzi, Stephen A. Mitchell, Granger B. Ward, and W.L. Sawyer under procedures established in Federal Rule of Civil Procedure 4--including incorporated methods set forth in CPLR § 308--was ineffective.
2. Judith Butcher
Plaintiffs attempted to serve Judith Butcher by leaving a copy of the summons and complaint with her secretary. For the reasons already discussed, leaving a copy of a summons and complaint with an individual's secretary when the individual to be served is not present does not constitute personal service under either Rule 4(e)(2) or CPLR § 308(1). Therefore, service on Judith Butcher under procedures established in Federal Rule of Civil Procedure 4--including incorporated methods set forth in CPLR § 308--was ineffective.
3. Nathalie McFarlane
Plaintiffs do not allege any attempts to provide Ms. McFarlane with a copy of the summons and complaint by any means. The claim against Ms. McFarlane is therefore dismissed for failure to serve within 120 days as required by Rule 4(m).
C. No Evidentiary Hearing is Required
Plaintiffs request a hearing to prove that service was proper. Where issues of fact as to sufficiency of service exist, the Court may convene a preliminary hearing. Rates Tech., Inc. v. UTT Corp., 1995 U.S. Dist. LEXIS 342, 94 Civ. 0326, 1995 WL 16788, at *1 (S.D.N.Y. Jan. 18, 1995); see also Fed. R. Civ. P. 12(d). And there are issues of fact regarding whether copies were or were not left with particular Defendants' secretaries. But even if all facts alleged by Plaintiffs are true (i.e., even if copies were left with the secretaries of various Defendants), those facts simply do not establish personal service as a matter of law. Plaintiffs' request for an evidentiary hearing on this matter is therefore denied.
D. There is No Good Cause For Extension of Time to Serve
Although Rule 4 instructs that the Court shall extend the time for service beyond 120 days if a plaintiff shows "good cause," Plaintiffs have failed to make any such showing. Plaintiffs bear the burden of showing that there was good cause in failing to timely serve Defendants. See Fed. R.Civ. P. 4(m); AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000). "A delay in service resulting from mere inadvertence, neglect or mistake of a litigant's attorney does not constitute good cause." Id. In the absence of good cause, the Court may dismiss the claims against the individually named Defendants. See id. at 109.
III. CONCLUSION
Because Plaintiffs have failed to meet their burden of showing that they properly served Defendants (1) Robert Mastruzzi, (2) Stephen A. Mitchell, (3) W.L. Sawyer, (4) Granger B. Ward, (5) Judith Butcher, and (6) Nathalie McFarlane within 120 days of filing their complaint, and because Plaintiff has not shown good cause for the failure to serve Defendants, these named Defendants have no obligation to answer the complaint. This motion to dismiss is hereby GRANTED, and the Clerk of the Court is directed to dismiss this action as against the six specified Defendants. The action continues as against Defendants the Board of Education of the City of New York and Harold Levy as Chancellor of the Board of Education, the City of New York, and Dr. Omar Ayed.
So Ordered: New York, New York
October 12, 2004
Richard Conway Casey, U.S.D.J.