Jackson v. County of Nassau
| Decision Date | 06 October 2004 |
| Docket Number | No. CV 99-3588.,CV 99-3588. |
| Citation | 339 F.Supp.2d 473 |
| Parties | Greta JACKSON, Individually and as Administratrix of the Estate of Christopher Jackson, Plaintiffs, v. COUNTY OF NASSAU, Nassau County Medical Center, the Nassau County Department of Corrections a/k/a the Nassau County Sheriff's Department, Alice Lee, M.D., John K. Taylor, M.D., Rafiq Sabir, M.D., John Does M.D. 1-10, Corrections Officers John Does, 1-10, in their individual capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Law Offices of Frederick K. Brewington by Frederick K. Brewington, Esq., Hempstead, NY, for Plaintiffs.
Nassau County Attorney by Esther Miller, Esq., Mineola, NY, for Defendants.
This is a case alleging medical malpractice in violation of state law and deliberate indifference to the medical needs of the Plaintiff's decedent, Christopher Jackson ("Jackson"), in violation of 42 U.S.C. § 1983. Jackson, who suffered from sickle cell anemia, died while in custody at the Nassau County Correctional Center ("NCCC"). This case was tried before a jury that rendered a verdict in Plaintiff's favor.
During trial, the court raised this issue of whether or not Plaintiff had properly obtained personal jurisdiction over one of the Defendants, Dr. Rafiq Sabir ("Dr. Sabir"). Despite this concern, the court allowed trial to continue and reserved the briefing of the personal jurisdiction issue for post-trial consideration. That issue is now before the court.
For the reasons that follow, the court holds that personal jurisdiction was never obtained over Dr. Sabir. He had neither constructive nor actual notice of the action or the trial. He was never deposed and there is no evidence that anyone involved in this matter ever contacted him. Despite the County's obligation to defend and indemnify employees and, indeed, its stated intention on the record to cover the cost of any judgment rendered against Dr. Sabir, the court cannot hold that personal jurisdiction over this Defendant was either obtained or waived. Neither fairness nor public policy dictates a different result. Accordingly, Plaintiff's motion for a default against Dr. Sabir is denied and Defendant's motion to dismiss the action as against this defendant is granted.
As noted above, Jackson died while in custody at the NCCC. State and federal claims alleged in this matter by Greta Jackson, the administratrix of Plaintiff's estate, allege medical malpractice and deliberate indifference to Jackson's serious medical needs. The latter claim brings this action within the realm of a federal civil rights violation pursuant to 42 U.S.C. § 1983.
Plaintiff's complaint, filed on or about June 24, 1999, named both institutional and individual defendants. Plaintiff alleged liability on the part of the County of Nassau, the Nassau County Medical Center (where Jackson was treated while in custody at the NCCC), and the Nassau County Departments of the Sheriff and Corrections. The individual defendants named were Drs. Alice Lee, John Taylor and Rafiq Sabir.1
The Nassau County Attorney's office filed an answer to Plaintiff's complaint on or about August 2, 1999. The answer states that it was filed on behalf of the County of Nassau, the two county departments named and individual defendant doctors Lee and Taylor. These defendants are referred to in the answer collectively, as the "County Defendants." Despite the fact that the introductory paragraph of the answer does not include a statement of appearance on behalf of Dr. Sabir, there is mention of Dr. Sabir in the County's affirmative defenses. Specifically, the tenth affirmative defense states that "defendant Rafiq Sabir has not been personally served with the summons and complaint in this action and therefore the Court does not have jurisdiction over the person of said defendant."
The issue of personal jurisdiction over Dr. Sabir laid dormant until the middle of trial, which took place nearly three years later. At that time, due to the Plaintiff's voluntary dismissal of Drs. Lee and Taylor on the first day of trial, Dr. Sabir was the sole remaining individual defendant. Even at that late date, however, the personal jurisdiction issue would not have been raised had it not been for the court's observation that Dr. Sabir, who testified neither in person nor by deposition, was nowhere to be found. Upon making this observation the court placed its concerns on the record (outside of the presence of the jury).
The court noted Plaintiff's dismissal of Drs. Lee and Taylor and the fact that the only remaining individual defendant was Dr. Sabir. When questioned about service, Plaintiff's counsel stated that personal service was accomplished on Dr. Sabir by serving an attorney at the Nassau County Medical Center, who accepted service of process as a matter of course for all medical center employees. The attorney trying the case on behalf of the County Defendants noted that a proper objection to personal jurisdiction had been raised in the County's answer, as set forth above.
The County stated that although Dr. Sabir was no longer in the County's employ at that time of service, he was an employee when Jackson was in custody. Relying on the County's obligation to defend and indemnify resident physicians, counsel expressed an interest to go forward with the case against Dr. Sabir and assured Plaintiff's counsel and the court that the County would be responsible for the payment of any judgment rendered against Dr. Sabir.
Upon reflection of the matter, the court determined that it could not endorse the County's position and allow the case to proceed against Dr. Sabir pursuant to the agreement of the parties. It was noted that even if the County indemnified Dr. Sabir for any judgment ultimately rendered, that judgment would nonetheless be one of personal liability for medical malpractice or, worse, a judgment that Dr. Sabir had acted with reckless disregard for the serious medical needs of his patient. Even without financial responsibility for payment, such a judgment could have serious adverse ramifications for Dr. Sabir's professional reputation. In sum, the court was unwilling to go along with any agreement that could saddle this doctor with a judgment when he had neither knowledge of the proceedings nor the opportunity to offer a defense.
The court further stated that if there was proof that Dr. Sabir had, in fact, been properly served with notice of the proceedings, Plaintiff should submit that proof in support of a motion for a default judgment. To that end, the court instructed the parties to brief the issue of whether or not Dr. Sabir was ever properly served. The parties thereafter submitted the presently pending cross motions for a judgment of default or dismissal as to Dr. Sabir.
Rule 4 of the Federal Rules of Civil Procedure sets forth the requirements for proper service of process on an individual. See generally Fed.R.Civ.P. 4. Service may be made by personal delivery, by leaving copies of the summons and complaint at the defendant's "dwelling place or usual place of abode" with a person of "suitable age and discretion" or by delivering the process to an "agent authorized by appointment or by law to receive service of process." Fed.R.Civ.P. 4(e). The Federal Rules also authorize service of process pursuant to the law of the state in which the court is located, or service is effected. In this matter, therefore, service could be effected pursuant to Section 308 of New York's Civil Procedure Law and Rules ("CPLR"), which sets forth the New York State rules for service upon individuals.
Section 308 of the CPLR ("Section 308") sets forth several acceptable methods for service of process upon an individual. Similar to the federal standards for proper service of process, Section 308(1) provides for service by personal delivery. Section 308(2) allows for service to be made either at the defendant's residence or at his "actual place of business." CPLR 308(2).
A third provision of Section 308, argued by Plaintiff to be relevant here, is Section 308(3). That section provides for service to be made by delivering the summons "to the agent for service of the person to be served." CPLR 308(3). Section 308(3) identifies clearly at least one type of "agent," that may be served — an agent "as designated under Rule 318." Rule 318, in turn, states that a person may be designated as an agent for service of process, "in a writing, executed and acknowledged in the same manner as a deed, with the consent of the agent endorsed thereon." CPLR 318. The writing setting forth the agent's authorization is to be filed in the office of the clerk of the county in which the principal either resides or has his principal office. See CPLR 318.
New York case law may be read as holding that an agent appointed pursuant to the formalities of Rule 318 is the only agent who is authorized to accept service of process under Rule 308(3). See, e.g., DeGroat v. Kralik, 224 A.D.2d 688, 638 N.Y.S.2d 716, 717 (2d Dep't 1996) (); Donaldson v. Melville, 124 A.D.2d 361, 507 N.Y.S.2d 301, 302 (3d Dep't 1986) (same); Espy v. Giorlando, 85 A.D.2d 652, 445 N.Y.S.2d 230, 231 (2d Dep't 1981), aff'd, 56 N.Y.2d 640, 450 N.Y.S.2d 786, 436 N.E.2d 193 (1982) ().
Designation of an agent pursuant to Rule 318 has not, however, been uniformly interpreted as the sole method for appointing an agent to accept service of process on behalf of a principal. For example, an agent may be appointed pursuant to a power of attorney designation or a contract. Designation of an "a...
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