Opinion
20-CV-2371 (JPC) (BCM)
08-12-2021
KELCEY DEPTULA, Plaintiff, v. JONATHAN ROSEN, et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. JOHN P. CRONAN
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Kelcey Deptula filed this action on March 17, 2020, and amended her complaint two days later, alleging that defendant Jonathan Rosen verbally abused her, drugged her, and sexually assaulted her during the waning years of a romantic relationship that began in 2011 and ended in March 2017, when she moved out of his New Jersey home. Plaintiff also alleges that Rosen failed to compensate her for work that she performed for his business, Ceramica de Espana (Ceramica). Now before me for report and recommendation is defendants' "Amended Motion to Dismiss this Frivolous Action with Prejudice" (Third Mtn.) (Dkt. No. 29), made pursuant to Fed.R.Civ.P. 12(b)(2), (b)(3), (b)(5), and (b)(6), for lack of personal jurisdiction, improper venue, insufficient service of process, and failure to state a claim upon which relief can be granted.
When plaintiff's counsel discovered Deptula's duplicity - some six months after the case was filed - he moved for leave to withdraw, describing her conduct, accurately, as "detrimental" to her case. He later changed his mind about withdrawing, and remains Deptula's attorney of record to this day. Under his stewardship, however, plaintiff never again attempted personal service on either defendant. Nor did she otherwise serve them in accordance with Rule 4(e) (governing service upon individuals) or Rule 4(h) (governing service upon corporations and unincorporated associations). At no time, moreover, did plaintiff request an extension of time within which to serve, or seek leave to serve by alternate means. Seventeen months now having passed without effective service on either defendant, and plaintiff having failed to show good cause or articulate a colorable excuse for the continuing failure, the case should be dismissed.
I. PLAINTIFF'S ALLEGATIONS
In her "Amended Verified Complaint" (Am. Compl.) (Dkt. No. 3), filed on March 19, 2020, plaintiff alleges that she is a citizen of New York; that defendant Rosen is a citizen of New Jersey, residing in Long Branch; that defendant Ceramica is "a business entity in New Jersey," with an address in Lakewood; and that the amount in controversy exceeds $75,000, bringing the case within this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1331. Am. Compl. ¶¶ 1, 8. She further alleges that Rosen is subject to this Court's personal jurisdiction because he engaged in "the acts complained of" in Manhattan, id. ¶¶4, and that venue lies in this District because a "substantial part of the events giving rise to the claims" occurred here. Id. ¶ 5.
Plaintiff's pleading is verified only by her attorney. Am. Compl. at 10.
According to plaintiff, she met Rosen in 2011. Am. Compl. ¶ 8. He gave her gifts and took her on shopping sprees and lavish vacations. Id. When she moved to New Jersey to be near him, he assisted her financially. Id. He also involved her in his business, Ceramica, using "her likeness on the packaging of his products," which she demonstrated at shows and exhibits. Id. Later, plaintiff moved into Rosen's home, where she lived with him and his two children. Id. The relationship deteriorated in 2016, when Deptula began experiencing headaches "and sometimes felt too ill to get out of bed," and Rosen "started calling her derogatory names." Id. In March 2017, the living situation became "untenable," and she moved out of his home. Id.
Plaintiff asserts six claims, all arising under state law: (1) Practicing Medicine Without a License, see Am. Compl. ¶¶ 9-14 (alleging that Rosen gave her sedatives and contraceptives while telling her, falsely, that they were headache remedies and "sleep medicines"); (2) Sexual Battery, see id. ¶¶ 15-22 (alleging that Rosen engaged in intercourse with plaintiff and took "demeaning, vulgar, and graphic pictures" of her while she was unconscious and unable to consent); (3) Negligent Infliction of Emotional Distress, see id. ¶¶ 23-29 (alleging that as a result of Rosen's extreme and outrageous conduct she suffered severe mental anguish); (4) Fraud, see id. ¶¶ 30-37 (alleging that Rosen lied to her about the nature of the medications he gave her); (5) Breach of Contract, see id. ¶¶ 38-42 (alleging that Rosen breached an oral contract to compensate her for her work on behalf of Ceramica); and (6) Quantum Meruit, see id. ¶¶ 43-46 (alleging, in the alternative, that she is entitled to the fair value of her promotional services). Although most of the alleged misconduct took place in New Jersey, "on many instances" Rosen gave plaintiff medications while "they were staying at the Waldorf Astoria Hotel" in Manhattan. Id. ¶ 11.
II. RELEVANT PROCEDURAL HISTORY
A. Plaintiff Fails to Obtain a Summons in Compliance with Rule 4(a)
On March 17, 2020, plaintiff's attorney, Jean Phillipe G. Bruno, Esq., filed plaintiff's original Complaint (Dkt. No. 1) and requested the issuance of a summons (Dkt. No. 2), but failed to file the federal form ("AO 440 Summons in a Civil Action") designed for this purpose. The Clerk of Court notified him of the error the following day, via ECF, but counsel never corrected it. Consequently, plaintiff never obtained a summons "signed by the clerk" and bearing the Court's seal, as required by Fed.R.Civ.P. 4(a)(1)(F) and (G).
The form of summons filed at Dkt. No. 2 appears to have been prepared by Bruno himself, bears his own signature, and is dated January 27, 2020 - seven weeks prior to the date on which this action was commenced. The body of the summons states, incorrectly, that defendants were required to respond "within 20 days after the service of this summons." Twenty days is the period ordinarily allowed to answer a complaint in a New York State court. See N.Y. C.P.L.R. (CPLR) §§ 320(a), 3012(c). In federal court, however, defendants are allowed 21 days. See Fed.R.Civ.P. 12(a)(1)(A)(i).
B. Plaintiff Fails to Serve Either Defendant with Process
Fed. R. Civ. P. 4(m) establishes a 90-day time limit for service of process "after the complaint is filed." By letter dated June 23, 2020 (June 23 Ltr.) (Dkt. No. 14-1), 98 days after plaintiff filed her original Complaint, attorney Bruno advised the Court that she had not yet effected service, despite an attempt to serve Rosen at 55 Ocean Avenue, Apt. 10F, Long Branch, New Jersey, on March 19, 2020, and a simultaneous attempt to serve Ceramica at 747 Vassar Avenue, Lakewood, New Jersey. June 23 Ltr. at 1. According to counsel, access to the Long Branch address was "restricted" on March 19, while the Lakewood facility was "closed." Id. Thereafter, "overnight/priority" mail was sent to the Long Branch address on June 12, 2020, but was "returned to sender" and marked "unable to forward." Id. According to attorney Bruno, "The carrier had been told that the plaintiff [sic] no longer lived at that location and that his whereabouts were unknown." Id. Bruno concluded, "Plaintiff believes that the defendants are evading service," and requested that all deadlines be "tolled until defendants can be served." Id. Counsel did not attach any affidavits of service or other admissible evidence regarding plaintiff's service attempts.
Three days prior to these service attempts, on March 16, 2020, the Governor of New Jersey issued Executive Order No. 104, which among other things closed schools, movie theatres, gyms, and casinos, and imposed a nightly curfew, in an effort to contain the initial wave of the COVID-19 pandemic. See https://www.nj.gov/governor/news/news/562020/20200316c.shtml (last visited Aug. 12, 2020).
The Hon. Analisa Torres, to whom this case was then assigned, adjourned the initial pretrial conference to August 11, 2020, and directed that the parties file a status letter and case management plan by August 4, 2020. (Dkt. No. 15.) August 4, 2020 came and went with no word from plaintiff, causing Judge Torres to issue several reminder orders. (Dkt. Nos. 16, 17.) On August 9, 2020, attorney Bruno filed a letter dated August 4, 2020 (Aug. 9 Ltr.) (Dkt. No. 18), stating that since his last letter he had identified a Florida address and several telephone numbers associated with Rosen, and had made further attempts to "contact" the individual defendant, all of which were unsuccessful, until (on an unspecified date) Rosen "became aware of the impending litigation and contacted plaintiff . . . to inquire about the same." Aug. 9 Ltr. at 1, 2. Counsel instructed his client "to refrain from any pertinent communications with the defendant" while he himself attempted to call and text Rosen at the telephone number "showing in [plaintiff's] caller I.D." Id. at 2. Because Rosen did not respond to Bruno's messages, counsel again concluded that "the defendants are evading service," and requested that all deadlines be "tolled until defendants can be served." Id. Counsel's August 9 representations, like those he made on June 23, were unsworn and unsupported by any admissible evidence.
By Order dated August 10, 2020 (Aug. 10 Order) (Dkt. No. 19), Judge Torres adjourned the initial pretrial conference again, to September 9, 2020, and directed: "If plaintiff remains unable to serve Defendants, then by September 2, 2020, Plaintiff shall file a letter detailing her efforts to effect service" and stating whether she intends to "move for any relief related to Defendants' purported evasion of service, such as service through alternative means or sanctions." Id.
C. The First Motion to Dismiss
On August 27, 2020, defendants appeared through counsel for the purpose of moving to dismiss pursuant to Rule 12(b)(5). In their "Limited/Special Appearance and Motion to Dismiss this Frivolous Action with Prejudice" (First Mtn.) (Dkt. No. 20), defendants explained that they:
. . . just learned of this action and have never attempted to evade service. The Plaintiff and the Defendant Jonathan Rosen have been in continuous contact with each other since this action was filed, and the Plaintiff never informed the Defendant about this lawsuit. The Plaintiff knew the Defendant's whereabouts at all times during the relevant time period.First Mtn. at 1.
In response to the First Motion, attorney Bruno filed a letter on September 7, 2020 (Sept. 7 Ltr.) (Dkt. No. 22), informing the Court that Deptula had just "revealed" to him that Rosen's home address was in Monmouth Beach, not Long Branch, New Jersey. Sept. 7 Ltr. at 2. However, Bruno stated, plaintiff still believed that defendants were actively evading service. Id. To avoid any "possible procedural defects," Bruno stated that plaintiff would "once again attempt to effectuate service on both defendants," and would do so "on or about September 8, 2020," which was the next day. Id. The September 7 letter did not address defendants' claim that Deptula and Rosen had been in "continuous contact" throughout the pendency of this action.
According to Google Maps, https://www.google.com/maps (last visited Aug. 12, 2021), there is a 55 Ocean Avenue in Long Branch, New Jersey, and another 55 Ocean Avenue in Monmouth Beach, New Jersey, approximately 2.5 miles away.
On September 9, 2020, defendants submitted a reply letter-brief (Sept. 9 Ltr.) (Dkt. No. 23), confirming that Rosen lived in Monmouth Beach, not Long Branch, and pointing out that Deptula knew the address well, having cohabited with him there for more than five years. Sept. 9 Ltr. at 12. In addition, the September 9 letter attached hundreds of pages of text messages between Deptula and Rosen, all sent between March 17 and September 8, 2020. Sept. 9 Ltr. Exs. A, B (Dkt. Nos. 23-1, 23-2). Taken as a whole, these messages - many of which are sexual in nature - confirm defendants' claim that the parties were in "continuous contact," both electronically and physically, at least since this action was filed. In addition to many shorter encounters, Deptula and Rosen took a five-day vacation trip to upstate New York in August 2020. See Sept. 9 Ltr. at 6; id. Ex. B, at ECF pages 46-50. The texts also confirm defendants' claim that Deptula "constantly" asked Rosen to send her money, pay her bills, or provide other financial assistance. Sept. 9 Ltr.at 3-4.
Notwithstanding the parties' ongoing relationship, defendants assert that Rosen did not know about this lawsuit until August 1, 2020, when - during a dinner date - Deptula confessed that she had filed a complaint against him, conceded that it was "completely meritless," and explained that another boyfriend, "Jermaine," had "convinced her to do it to extort money" from Rosen. Sept. 9 Ltr. at 6-7. After she confessed, Deptula agreed to drop her lawsuit, id. at 9-10, and on August 25 she signed a letter (drafted by Rosen) describing her case as "frivolous and meritless" and directing her attorney to dismiss it. First Mtn. Ex. A (Dkt. No. 20-1). A few days later, however, Deptula had a change of heart, explaining in a text message to Rosen that she was "really feeling like your [sic] not going to live up to your part of the agreement." Sept. 9 Ltr. Ex. B, at ECF page 66. On August 30, 2020, plaintiff telephoned attorney Bruno, stated that she had been "pressured into" signing the August 25 letter, and "implored and instructed" Bruno to "disregard that letter and hold the present course." Sept. 7 Ltr. at 2.
Although the First Motion was premised solely on Rule 12(b)(5), the September 9 letter sought expanded relief. Arguing that Deptula's August 25 letter was "truthful," and that her false claims, combined with her frequent requests for money, constitute "extortion," Sept. 9 Ltr. at 1-5, 15-16, defendants asked the Court to "dismiss with prejudice or summarily adjudicate this case in favor of the Defendants pursuant to Fed.R.Civ.P. 12 or Fed.R.Civ.P. 56." Id. at 16.
By Order dated September 10, 2020 (Sept. 10 Order) (Dkt. No. 24), Judge Torres denied the First Motion, writing that the September 9 letter was "unauthorized and improper." Sept. 10 Order at 1. However, since that letter indicated that defendants wished to move against the Amended Complaint on multiple grounds, Judge Torres gave them leave to file "a single motion to dismiss under Rule 12(b)" by October 8, 2020. Id. at 2.
Judge Torres explained: "The Federal Rules of Civil Procedure and this Court's Individual Practices in Civil Cases provide specific procedures for contesting a complaint and litigating an action....None of those procedures permits Defendants to seek dismissal of an action on the basis of a letter from Plaintiff to her lawyer." Sept. 10 Order at 1-2.
D. The Second and Third Motions to Dismiss
On September 24, 2020, defendants filed their second motion to dismiss this action (Second Mtn.) (Dkt. No. 27), invoking Rule 12(b)(5) and (b)(6). On September 25, 2020, defendants expanded their arguments again, filing the Third Motion, which once again attaches the parties' voluminous text message correspondence, see Third Mtn. Exs. A, B (Dkt. Nos. 29-1, 29-2), and seeks dismissal under Rules 12(b)(2), (b)(3), (b)(5), and (b)(6).
Defendants' argument with respect to the insufficient-process branch of their motion, made pursuant to Rule 12(b)(5), is fairly straightforward: Plaintiffs failed to serve them, they say, not because of any evasion by defendants but because plaintiff herself "consistently and intentionally thwarted service" by failing to give her attorney Rosen's "actual home address," and because her counsel "failed to perform even the most basic search" to discover that address on his own. Third Mtn. at 2. See also id. at 21 ("As of the filing of this Motion, Defendants have never been served."). Defendants' remaining arguments, seeking dismissal under Rules 12(b)(2), (b)(3), and (b)(6), are somewhat less coherent.
Defendants urge the Court to dismiss plaintiff's claims pursuant to Rule 12(b)(6) because it is "patently obvious" (based on materials outside of the pleadings, which cannot be considered on a motion made pursuant to subsection (b)(6)) that she is a "flim-flam artist seeking to extort the Defendant." Third Mtn. at 22. They next assert - with no support whatsoever, inside or outside of the pleadings - that Ceramica is merely a "brand," rather than a "legal entity," and that plaintiffs allegations "involve another company," which they do not name. Id. They then seek a "holding" that "plaintiff has "committed the tort of abuse of process," id. at 23-27, notwithstanding that they have never pleaded an abuse-of-process claim (or indeed any claim) against plaintiff. Finally, defendants assert that they are not subject to this Court's personal jurisdiction, and that venue is improper in this District, because "[n]one of plaintiff's allegations in the Complaint took place in New York." Third Mtn. at 27-28. In fact, as noted above, plaintiff alleges that "on many instances" Rosen gave her medications under false pretenses while "they were staying at the Waldorf Astoria Hotel" in Manhattan. Am. Compl. ¶ 11.
E. The Motion to Withdraw
On September 25, 2020, shortly after the Third Motion was filed, attorney Bruno sought leave to withdraw as plaintiff's counsel, explaining that he could not continue to represent Deptula because she had "persisted in a course of conduct that is at best reckless, at times baffling and ultimately detrimental to the plaintiff's own case." Mtn. for Withdrawal (Dkt. No. 31-1) ¶ 1. Bruno specifically complained that Deptula had provided him with a bad service address for Rosen:
Plaintiff's counsel was provided with an address listed as the defendant residence/domicile. That address erroneously listed Long Branch, New Jersey as the town instead of Monmouth Beach, New Jersey. That in turn affected service of process. That error was not communicated to plaintiff's counsel until August 30, 2020 although the plaintiff had lived at that address intermittently for years.Id. ¶ 3. Additionally, counsel acknowledged that Deptula had "for months professed not to know of the defendant's whereabouts," id. ¶ 4, while "failing to disclose to her own counsel" the fact that she vacationed with Rosen and was otherwise in "constant communication" with him during the pendency of the lawsuit. Id. ¶ 5. During this period, Bruno complained, she also failed to "dispel the notion that the defendant was actively avoiding service," thereby permitting her counsel to advance what she knew to be a meritless argument. Id.
On September 29, 2020, this action was reassigned to the Hon. John P. Cronan, and on October 2, 2020, Judge Cronan referred the case to me for general pretrial management and report and recommendation on dispositive motions. (Dkt. No. 36.) That same day, I stayed briefing on defendants' motion(s) to dismiss until the attorney withdrawal motion was resolved. (Dkt. No. 35.) By Order dated October 16, 2021 (Oct. 16 Order) (Dkt. No. 40), issued after defendants moved for leave to further expand their motion to dismiss (Dkt. No. 37), I denied the expansion motion and deemed defendants' Second Motion withdrawn, leaving the Third Motion for adjudication. Oct. 16 Order ¶¶ 1-3.
On October 23, 2020, after Bruno failed to serve various orders relating to the withdrawal motion on his client (and she failed to appear for the conference scheduled to consider that motion), I denied the motion to withdraw "without prejudice to renewal," directed Bruno to serve the withdrawal-related orders "immediately," and continued to stay briefing on defendants' motion to dismiss pending resolution of the renewed withdrawal motion. (Dkt. No. 42.)
No renewed withdrawal motion was ever filed. On November 17, 2020, attorney Bruno advised the Court: "After consultation with my client . . . and upon her request I have agreed to continue representing her in the current matter." (Dkt. No. 45-1.) No further explanation was provided. Thereafter, briefing on the motion to dismiss resumed. On December 15, 2020, plaintiff filed her opposition brief (Pl. Opp. Mem.) (Dkt. No. 53), and on December 22, 2020, defendants filed a reply brief (Dkt. No. 56) and an affidavit (Rosen Reply Aff.) (Dkt. No. 56-1), in which Rosen attests, among other things, that the text messages "are what they purport to be: a series of thousands of text messages sent to me by Plaintiff at her initiative." Rosen Reply Aff. ¶ 11.
Plaintiff does not challenge the authenticity of the text messages. Instead, she describes them as "hearsay" and complains that they were obtained via "illegal communication with a represented party." Pl. Opp. Mem. at 8. Both points are meritless. Statements by party-opponents are not hearsay. Fed.R.Evid. 801(d)(2). And while it is unethical (in most situations) for an attorney acting as such to "communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter," see N.Y. Rules of Prof. Conduct, Rule 4.3(a), there is no comparable prohibition on adverse parties communicating directly with one another.
F. Plaintiff's Last Service Attempt
Attorney Bruno never filed any affidavits of service or other admissible evidence concerning the service attempts he says he made in March and June, 2020. On October 29, 2020, he filed a Proof of Service, signed by him, attesting that on that day he "mailed copies of the summons and complaint to both the defendants and their attorney." (Dkt. No. 43-1.) Insofar as can be gleaned from the record, no other or further efforts were made to serve defendants with process. Nor did plaintiff ever request an extension of her time within which to do so, or leave to serve by alternative means.
III. ANALYSIS
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). See also 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed.) (service of process is "the means by which a federal court gives notice to the defendant and asserts jurisdiction over him"). "Accordingly, the adequacy of service of process must be resolved "'before any merits-based challenge to the complaint.'" Hines v. Roc-A-Fella Recs., LLC, 2020 WL 1888832, at *2 (S.D.N.Y. Apr. 16, 2020) (quoting George v. Prof'l Disposables Int'l, Inc., 221 F.Supp.3d 428, 442 n.7 (S.D.N.Y. 2016)).
A. Legal Standards
"On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient." Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010) (summary order); see also Cassano v. Altshuler, 186 F.Supp.3d 318, 320 (S.D.N.Y. 2016); Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003). "Because a Rule 12(b)(5) motion implicates 'whether [the court] has jurisdiction,' the court 'looks to matters outside the complaint.'" Hines, 2020 WL 1888832, at *1-2 (quoting Cassano, 186 F.Supp.3d at 320).
"In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which governs the content, issuance, and service of a summons." DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 64 (S.D.N.Y. 2010). "Technical errors in a summons generally do not render service invalid," id. at 65, but "where the error actually results in prejudice to the defendant or demonstrates a flagrant disregard of Rule 4, service will be considered invalid and amendment need not be allowed." Id. (collecting cases). "Courts in the Second Circuit are split as to whether an unsigned and unsealed summons is a technical defect or a flagrant disregard of Rule 4." Swanson v. City of New York, 2017 WL 3130322, at *5 (E.D.N.Y. July 21, 2017) (quoting DeLuca, 695 F.Supp.2d at 65); compare, Kriger v. Am. Express Fin. Advisors, 2000 WL 207119, at *4 (W.D.N.Y. Feb. 16, 2000) (denying defendant's motion to dismiss a pro se action for insufficient service because the absence of the clerk's signature and the court's seal were "mere technical defects" and service was otherwise adequate) with Macaluso v. New York State Dep't of Env't Conservation, 115 F.R.D. 16, 18 (E.D.N.Y. 1986) ("service of an unsigned, unsealed summons not issued by the court clerk . . . amounts to a complete disregard of the requirements of process set forth clearly and concisely in Rule 4").
Rule 4(e) governs service on an individual within the United States:
Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process."Fed. R. Civ. P. 4(e).
Rule 4 (h)(1) governs service on business entities within the United States:
Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and - if the agent is one authorized by statute and the statute so requires - by also mailing a copy of each to the defendant; orFed. R. Civ. P. 4(h).
If a defendant is not properly served "within 90 days after the complaint is filed," the Court "must" dismiss the action without prejudice against the unserved defendant(s), "or order that service be made within a specified time." Fed.R.Civ.P. 4(m). However, "if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period."
"The plaintiff bears the burden of proof in showing that it had good cause in not timely serving the defendant." George, 221 F.Supp.3d at 432 (quoting AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., 197 F.R.D. 104, 108 (S.D.N.Y. 2000)). To establish good cause, "a plaintiff must demonstrate that despite diligent attempts, service could not be made due to exceptional circumstances beyond his or her control." Spinale v. United States, 2005 WL 659150, at *3 (S.D.N.Y. Mar. 16, 2005), aff'd, 352 Fed.Appx. 599 (2d Cir. 2009); accord George, 221 F.Supp.3d at 432; Feingold v. Hankin, 269 F.Supp.2d 268, 276-77 (S.D.N.Y. 2003).
"Attorney error does not constitute good cause under Rule 4(m)." Counter Terrorist Grp. U.S. v. New York Mag., 374 Fed.Appx. 233, 235 (2d Cir. 2010) (summary order); accord George, 221 F.Supp.3d at 433. Similarly, good cause does not exist where the plaintiff, upon learning that a defendant was not properly served, fails either to serve that defendant again within the time remaining under Rule 4(m) or to seek additional time within which to do so. Reed Holdings Inc. v. O.P.C. Corp., 122 F.R.D. 441, 444-45 (S.D.N.Y. 1988); see also Cassano, 186 F.Supp.3d at 322 (plaintiffs' failure to ask for more time "weighs against" a finding of good cause);.AIG, 197 F.R.D. at 108 (in determining good cause, court should consider not only whether plaintiff was initially diligent but also whether it moved "for an extension of time to serve the defendant" when its initial efforts failed (citing Gordon v. Hunt, 835 F.2d 452, 453 (2d Cir. 1987))); Kelly v. Hoegh Autoliners Shipping PTE, Ltd., 2020 WL 3129644, at *3 (D.N.J. June 12, 2020) (dismissing pursuant to Rule 12(b)(5) where, inter alia, plaintiffs "failed to comply with the Federal Rules by not obtaining a summons" signed and sealed by the clerk, and then "doubled down" by making no further efforts to comply with Rule 4 after defendants moved to dismiss for insufficient service).
Even in the absence of good cause, "a court has the discretion to grant an extension of time to serve the defendant." Hahn v. Off. & Pro. Emps. Int'l Union, AFL-CIO, 107 F.Supp.3d 379, 382 (S.D.N.Y. 2015) (citing Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007)). "To obtain a discretionary extension absent a showing of good cause, 'the plaintiff must ordinarily advance some colorable excuse for neglect.'" Cassano, 186 F.Supp.3d at 323 (quoting Zapata, 502 F.3d at 198. Courts then "balance justifiable excuses offered by the plaintiff, the length of the delay, and any prejudice to either party." Spinale, 2005 WL 659150, at *4.
B. Application
1. Plaintiff Failed to Effect Service on Either Defendant
The 90-day service period prescribed by Rule 4(m) initially expired on June 15, 2020. However, on August 10, 2020, Judge Torres directed plaintiff to complete service by September 2, 2020, or to advise the Court, by the same deadline, whether she intended to "move for any relief." Aug. 10 Order at 1. For purposes of the pending motion, I construe the August 10 Order as having "extended the time for service," pursuant to Rule 4(m), through September 2, 2020.
Neither defendant was served by September 2, 2020. Plaintiff does not argue otherwise. Instead, she contends that the time for service was further extended by operation of an executive order issued by the Governor of New York at the start of the COVID-19 pandemic, which tolled "any specific time limit for the . . . service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state," and ultimately remained in place until November 3, 2020. Pl. Opp. Mem. at 5-6 (quoting N.Y. Exec. Order No. 202.8 (March 20, 2020)); see also N.Y. Exec. Order No. 202.67 (Oct. 4. 2020) (extending tolling until November 3, 2020). According to plaintiff, these orders "tolled time periods for serving process in legal actions, including those in CPLR 306-b, which makes the date of service of this present action timely." Pl. Opp. Mem. at 6.
Plaintiff is mistaken. First, Executive Order No. 202.8 did not affect the 90-day period prescribed by Rule 4(m), which is solely a creature of federal law. It did toll CPLR § 306-b, which is "a state-law analog of Fed.R.Civ.P. 4(m)," Vasconcellos v. City of New York, 2014 WL 4961441, at *10 (S.D.N.Y. Oct. 2, 2014), and ordinarily requires a state court plaintiff in New York to serve the defendant with process within 120 days of filing the complaint. However, CPLR § 306-b does not govern the service of process in federal court and has no application here. See J.G. ex rel. J.G. v. Bd. of Educ. of Briarcliff Manor Union Free Sch. Dist., 2008 WL 3843523, at *4 (S.D.N.Y. Aug. 14, 2008) (even where the applicable limitations period is supplied by state law, "federal courts apply Rule 4(m) to govern the period of time required to serve process").
Second, plaintiff did not effect service on either defendant by November 3, 2020 - or at all. Proof of service must be made "by the server's affidavit." Fed.R.Civ.P. 4(l)(1). The only such affidavit in the record here is the Proof of Service signed by attorney Bruno on October 29, 2020, attesting that he "mailed copies of the summons and complaint to both the defendants and their attorney." (Dkt. No. 43-1.) I therefore assume that the "date of service" to which plaintiff refers in her brief is October 29, 2020. Timeliness aside, the October 29 mailing did not satisfy Rule 4(e) or 4(h), because mailing a summons and complaint to a defendant - without more - is not good service under federal law, see Fed.R.Civ.P. 4(e)(2); 4(h)(1)(A); under New York law, see CPLR §§ 308-311(a) ; or under New Jersey law. See N.J. Ct. R. R. 4:4-3(a).
CPLR § 308, which governs service of New York State process on a natural person, "does not authorize a mailing unaccompanied by any other form of service." Macaluso, 115 F.R.D. at 19. 1986). Similarly, CPLR §§ 310 through 311-a generally require personal service on partnerships, limited partnerships, corporations, and limited liability companies, unless the court, upon motion, directs otherwise. CPLR § 312(a), entitled "personal service by mail," permits a plaintiff to mail the summons and complaint by first class mail, together with "two copies of a statement of service by mail and acknowledgment of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender." CPLR § 312-a(a). However, service is not complete unless the defendant executes the acknowledgment and returns it within 30 days from the date of receipt. CPLR § 312-a(b). Here, there is no suggestion that plaintiff mailed - or that either defendant received, signed, and timely returned - the materials specified in CPLR § 312-a.
Rule 4:4-3(a) permits service of New Jersey process by mail only after several preliminary steps have been exhausted. "If personal service cannot be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service required by R. 4:4-7," the plaintiff may send the summons and complaint "by registered or certified mail, return receipt requested." N.J. Ct. R. R. 4:4-3(a). "If the addressee refuses to claim or accept delivery of registered or certified mail, service may be made by ordinary mail addressed to the defendant's usual place of abode. Id. Here, there is no proof of service describing with specificity plaintiff's reasonable and good faith efforts to effect personal service. Nor is there any indication that plaintiff ever attempted service by registered or certified mail.
Similarly, mailing a summons and complaint to a defendant's attorney is not good service, unless the client has authorized that attorney to accept service of process on the defendant's behalf. See Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1094 (2d Cir. 1990) ("service of process on an attorney not authorized to accept service for his client is ineffective"); see also United States v. Glaister, 2021 WL 1565678, at *2 (S.D.N.Y. Apr. 21, 2021) ("simply representing a client does not constitute authorization (let alone retroactive authorization) to accept service on the client's behalf"). Here, there is no suggestion that defendants' counsel (who appeared for express purpose of moving to dismiss) was authorized to accept service of the summons and complaint, by mail or otherwise. Nor did the Court authorize such service. Cf. Gonzalez v. United States, 2016 WL 11670727, at *2 (E.D.N.Y. Sept. 29, 2016) (authorizing plaintiff to serve a federal law enforcement agent via "service upon the United States Attorney's Office" where the officer "refus[ed] to accept service on two occasions at the location represented by defendants' counsel to be the proper service address"). Consequently, the mailing evidenced by attorney Bruno's October 29, 2020 Proof of Service was ineffective as service upon either defendant.
Third, as noted above, plaintiff never obtained, and therefore could not have served, a summons satisfying Rule 4(a). While some courts within our Circuit forgive the absence of the clerk's signature and seal on a summons as a "technical defect," particularly where the plaintiff is pro se and service is otherwise adequate, see, e.g., Kriger, 2000 WL 207119, at *4, plaintiff Deptula was represented by an attorney. Moreover, that attorney was expressly directed, by the Clerk, to "[r]e-file" plaintiff's Request for Issuance of Summons and "attach the correct AO 440 (Rev. 06/12) Summons in a Civil Action PDF." He ignored that direction. As a result, the only summons in the record of this action "failed to contain three of the seven required elements of Rule 4(a)(1). It includes the wrong date for which defendants were required to appear and defend, it does not bear the court's seal, and it does not include the clerk's signature. This goes beyond a mere technical flaw and plainly violates Rule 4(b)." Rizvi v. Allstate Corp., 2019 WL 4674658, at *6 (D. Conn. Sept. 25, 2019), appeal dismissed (2d Cir. Dec. 18, 2019). Thus, even if plaintiff's October 29, 2020 service effort were timely, and even if it complied with Rules 4(e) and 4(h), it would not satisfy "the procedural requirement of service of summons," Omni Capital, 484 U.S. at 104, as required before this Court could assert personal jurisdiction over defendants.
2. Plaintiff Has Not Demonstrated Good Cause for her Failure
In assessing whether a plaintiff has shown good cause for having failed to properly serve the summons and complaint, the "first and primary factor that courts consider" is the reason that the plaintiff proffers for that failure. Cassano, 186 F.Supp.3d at 322. If the plaintiff demonstrates that she was prevented from serving "despite diligent attempts," Spinale, 2005 WL 659150, at *3, court weigh that diligence "against the prejudice to the defendant resulting from the delay." DeLuca, 695 F.Supp.2d at 66; accord Carroll v. Certified Moving & Storage, Co., 2005 WL 1711184, at *2 (E.D.N.Y. July 19, 2005); AIG, 197 F.R.D. at 108.
Here, as in Cassano, plaintiff "offer[s] no explanation for [her] failure to effect proper service." 186 F.Supp.3d at 322. The record, however, reveals that she took steps to prevent her lawyer from locating and serving Rosen. As attorney Bruno explained when seeking leave to withdraw, Deptula gave him a bad address for Rosen, which "affected service of process," even though she herself "had lived at that address intermittently for years." Mtn. for Withdrawal ¶ 3. She also kept her lawyer in the dark about her ongoing relationship and frequent contacts with Rosen, including a vacation trip to upstate New York that the couple took while Bruno (who had instructed his client to "refrain from any pertinent communications with the Defendant") was still trying to track Rosen down in Florida. Aug. 9 Ltr. at 2. The text messages submitted by defendants provide additional evidence that plaintiff intentionally made it difficult for Bruno to find and serve defendant Rosen.
11 As noted above, Deptula texted as early as April 7, 2020, to warn him that Jermaine was pressuring her to "take you to court." Third Mtn. at 13. If Rosen clicked through and read the underlying messages from Jermaine, he would have realized then that there was already a lawsuit against him, and that what Jermaine wanted Deptula to do was to serve it upon him. See id. ("you were suppose to have him served"). On April 7, 2020 - less than three weeks after Bruno's initial service attempt - Deptula texted Rosen: "I have to show you the messages Jermaine sent me. He's saying until I take you to court he's keeping my stuff and I can never come back." Third Mtn. at 13-14; id. Ex. A, at ECF pages 70-71. Deptula then forwarded a series of messages - apparently from Jermaine - in which he chastised her for failing to have Rosen served with process, writing, "Well you were suppose to have him served you have the lawyer I introduced you to waste her time with the paperwork and everything and when she went to serve him or the processing server you backed out and said you needed privacy and didn't go through with it." Id. (spelling and punctuation as in the original).
Attorney Bruno appears to have been unaware - until early September 2020 - of the extent to which his client was playing both sides of the street. Even when allowances are made for that fact, however, Bruno's service efforts cannot be described as diligent. At the outset of the case, he failed to follow the simple instructions from the Clerk that told him how to obtain a summons in compliance with Rule 4(a). Thereafter, he made only one attempt - on March 19, 2020 - to serve defendants by personal delivery, as required by federal and state law. Even after defendants filed their First Motion (on August 27, 2020), and Deptula "revealed" Rosen's true address (on August 30, 2020, see Sept. 7 Ltr. at 2), attorney Bruno "doubled down," Kelly, 2020 WL 3129644, at *3, by failing to deliver the summons and complaint to that location. Nor did he seek additional time within which to serve, or leave to serve by alternate means. Instead - almost two months later, on October 29, 2020 - plaintiff's counsel simply dropped the complaint and a (defective) summons in the mail, which any competent lawyer would know to be insufficient.
I am not entirely convinced that Rosen was ignorant of the lawsuit until August 1, 2020, as he claims. See Third Mtn. at 2; Rosen Reply Aff. ¶ 7.11 However, "[n]either actual notice nor absence of prejudice to the defendant provides an adequate basis for excusing noncompliance with Rule 4(m), unless plaintiff has diligently attempted to complete service." Cassano, 186 F.Supp.3d at 322 (quoting Mused v. U.S. Dep't of Agric. Food & Nutrition Serv., 169 F.R.D. 28, 34 (W.D.N.Y. 1996)); see also McGann v. New York, 77 F.3d 672, 674-75 (2d Cir. 1996) (affirming dismissal of a pro se complaint for failure to comply with Fed.R.Civ.P. 4(c)(2)(C) even though the defendant actually received the summons and complaint); Hood v. Ascent Med. Corp., 2014 WL 5089559, at *2 (S.D.N.Y. Oct. 9, 2014) ("A showing that a defendant had actual notice of the lawsuit is insufficient to defeat a motion to dismiss."). As explained in Delicata v. Bowen, 116 F.R.D. 564, 566 (S.D.N.Y. 1987), "the plain language of Rule 4(j) [now Rule 4(m)] leaves no room for excusing untimely service where there is total failure to show good cause." Here too, plaintiff has wholly failed to show good cause for her failure to serve defendants timely. Thus, under the plain language of Rule 4(m), she is not entitled to any further opportunity to do so.
3. Plaintiff Should Not Be Granted a Discretionary Extension
In the absence of good cause, the Court's authority to grant an extension of the time for service of process "is purely discretionary." Counter Terrorist Grp. U.S. 374 Fed.Appx. at 235. In this case, there is no reason for the Court to exercise that discretion. Not only has plaintiff failed to demonstrate good cause for her failure to serve; she does not articulate any "colorable excuse" for that failure. Cassano, 186 F.Supp.3d at 323. Nor, for that matter, does she request a discretionary extension. In her brief, she argues only (and mistakenly) that she timely served defendants with process through her October 29, 2020 mailing. Pl. Opp. Mem. at 6.
On the other side of the ledger, plaintiff also fails to address the issue of prejudice. It is therefore difficult to determine whether a dismissal without prejudice (the only remedy available under Rule 4(m)) would in fact prejudice one or more of her claims due to the expiration of relevant statutes of limitation. I note, however, that "extending the service period beyond the statute of limitations period for the action imposes a corresponding prejudice on defendants," Vaher v. Town of Orangetown, 916 F.Supp.2d 404, 421 (S.D.N.Y. 2013), which the Court can and should consider, especially where defendants did not "conceal the defect in service." Id. at 420 (quoting DeLuca, 695 F.Supp.2d at 66); see also Cassano, 186 F.Supp.3d at 323-24 ("Even though dismissal may prejudice some of Plaintiffs' claims based on applicable statutes of limitations, which is unclear, this factor is not dispositive . . . and cuts both ways."). Here, as in Vaher and Cassano, defendants "repeatedly raised the service deficiencies," but plaintiff "still has not attempted reasonable efforts to cure them." Vaher, 917 F.Supp.2d at 421 (emphasis in the original). On this record, a discretionary extension should be declined.
IV. CONCLUSION
For the reasons set forth above I recommend, respectfully, that defendants' motion be GRANTED to the extent that the case be DISMISSED, without prejudice, pursuant to Fed.R.Civ.P. 12(b)(5).
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. John P. Cronan at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Cronan. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).