Cassano v. Altshuler
Decision Date | 16 May 2016 |
Docket Number | No. 15-cv-1186 (NSR),15-cv-1186 (NSR) |
Citation | 186 F.Supp.3d 318 |
Parties | Frank-Michael Cassano and Camille-Carmela Cassano, Plaintiffs, v. Aleksandr Altshuler, David W. Nelms, and Does 1-10, Defendants. |
Court | U.S. District Court — Southern District of New York |
Frank Michael Cassano, Fort Montgomery, NY, pro se.
Camille Carmela Cassano, Fort Montgomery, NY, pro se.
Aleksandr Altshuler, Segal Gebski PLLC, New York, NY, for Defendants.
Plaintiffs Frank-Michael Cassano and Camille-Carmela Cassano (collectively, "Plaintiffs") bring this action pro se against Defendants David W. Nelms and Aleksandr Altshuler (collectively, "Defendants") alleging violations of the Fair Debt Collection Practices Act, deceptive practices in violation of New York General Business Law § 349, common law fraud, and intentional infliction of emotional distress. Presently before the Court is Defendants' motion to dismiss the Amended Complaint pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 28.) For the reasons set forth below, Defendants' motion is GRANTED.
On February 9, 2015, Plaintiffs commenced the instant action by filing a Complaint. (ECF No. 1.) On March 20, 2015, the Court issued an Order of Service directing the Clerk of Court to issue a summons as to Defendants Discover Bank and Jaffe & Asher. (ECF No. 3.) The Order of Service further directed Plaintiffs to serve the summons and complaint on those defendants within 120 days of the issuance of the summons. (Id. ) On April 13, 2015, Plaintiffs filed an Affirmation of Service with the Court stating that on April 7, 2015 Plaintiffs served Discover Bank and Jaffe & Asher via U.S. postal certified mail on the companies' respective headquarters. (ECF No. 4.) On May 28, 2015, the Court held a pre-motion conference during which time counsel for Discover Bank and Jaffe & Asher indicated that it intended to file a motion to dismiss on the basis of improper service and lack of jurisdiction. The Court directed Discover Bank and Jaffe & Asher to serve motion papers by June 11; Plaintiffs to serve opposition papers by July 9; and reply papers to be served on July 24, 2015.
On June 8, 2015, Plaintiffs filed the Amended Complaint, which replaced previous defendants Discover Bank and Jaffe & Asher with Nelms and Altshuler.1 (ECF No. 8.) On June 22, 2015, Plaintiffs filed an Affirmation of Service, which states that Nelms and Altshuler were served via U.S. postal certified mail on June 18, 2015. (ECF No. 10.)
On June 22, 2015, in contravention of the briefing schedule outline by the Court at the May 28 conference, Plaintiffs filed various papers seeking "dismiss[al]" of the motion to dismiss and requesting that the Court "compel [ ]" Defendants to answer the Amended Complaint. (ECF Nos. 11–14.)
Defendants assert that the Court should dismiss the Amended Complaint on the basis of lack of personal jurisdiction (Rule 12(b)(2) ); insufficient service of process (Rule 12(b)(5) ); and failure to state a claim (Rule 12(b)(6) ). "The Court considers the jurisdictional issues first, because a dismissal for lack of jurisdiction renders all other claims moot." Darden v. DaimlerChrysler N. Am. Holding Corp. , 191 F.Supp.2d 382, 386 (S.D.N.Y.) (citing Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ; Calero v. Immigration and Naturalization Service , 957 F.2d 50 (2d Cir.1992) ; Da Silva v. Kinsho Int'l Corp. , 229 F.3d 358 (2d Cir.2000) ).
" Rule 12(b)(5) provides for dismissal of a complaint for insufficient service of process." Hahn v. Office & Prof'l Employees Int'l Union, AFL – CIO , 107 F.Supp.3d 379, 382 (S.D.N.Y.2015). In considering a Rule 12(b)(5) motion to dismiss for insufficient service of process, a court must looks to matters outside the complaint to determine whether it has jurisdiction. Darden , 191 F.Supp. at 387. "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) (citing Burda Media, Inc. v. Viertel , 417 F.3d 292, 298 (2d Cir.2005) (citing Mende v. Milestone Tech., Inc. , 269 F.Supp.2d 246, 251 (S.D.N.Y.2003) )).
Rule 4(e) of the Federal Rules of Civil Procedure states that service upon an individual within a judicial district of the United States may be completed by:
Fed. R. Civ. P. 4(e). The applicable state law permits the following methods of service:
N.Y. C.P.L.R. § 312–a(a). Under the alternative method, "[s]ervice is complete on the date the signed acknowledgement of receipt is mailed or delivered to the sender." Id. at 312-a(b).
In the present case, Plaintiffs attempted to serve Nelms and Altshuler via certified mail. (See ECF No. 10.) That method, however, is not permitted under the federal rules or applicable state rules, nor has this Court issued an order allowing Plaintiffs to serve Defendants via an alternate method. See Conway , 2010 WL 4722279, at *3 (). Additionally, Plaintiffs are not excused from complying with the applicable rules of service merely by virtue of their pro se status.
Furthermore, Plaintiffs are not entitled to an extension to effect proper service. Under Rule 4(m) of the Federal Rules of Civil Procedure, "[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against the defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m).2 An exception to this rule exists if a plaintiff is able to demonstrate good cause for failure to timely serve (id. ), and "a court has the discretion to grant an extension of time to serve the defendant" even absent a showing of good cause. Hahn , 107 F.Supp.3d at 382 (citing Zapata v. The City of New York , 502 F.3d 192, 196 (2d Cir.2007) ). In the present case, Plaintiffs have not requested an extension. Additionally, an extension is not warranted because (1) Plaintiffs have not shown good cause for the failure to properly effectuate service and (2) the relevant factors weigh against granting a discretionary extension.
Plaintiffs have not shown "good cause" for their failure to properly serve Defendants. Fed. R. Civ. P. 4(m). The first and primary factor that courts consider in assessing good cause is the reason plaintiffs proffer for their failure. See Gordon v. Hunt , 116 F.R.D. 313, 320–21 (S.D.N.Y.1987). "[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 , No. 03–cv–1704, 2005 WL 659150, at *3 (S.D.N.Y. Mar. 16, 2005), aff'd , 352 Fed.Appx. 599 (2d Cir.2009). Inadvertence, mistake or neglect does not constitute good cause for an extension. Id.
Plaintiffs offer no explanation for their failure to effect proper service. Instead, Plaintiffs ignore the issue of improper service and merely cite to Rule 4 of the Federal Rules of Civil Procedure in passing in their opposition brief. (ECF No. 31.) It appears that Plaintiffs either (i) are not aware of or (ii) do not understand the appropriate methods for service under the federal rules and New York CPLR, but ignorance or confusion, even in the case...
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