Lau v. Fauci

• Docket Number: 22-cv-436 (BKS/DJS)
• Decision Date: 01 May 2023
• Parties: GILBERT LAU, et al., Plaintiffs, v. DR. ANTHONY STEPHEN FAUCI, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

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GILBERT LAU, et al., Plaintiffs, v. DR. ANTHONY STEPHEN FAUCI, et al., Defendants.

No. 22-cv-436 (BKS/DJS)

United States District Court, N.D. New York

May 1, 2023

Plaintiffs pro se: Gilbert Lau Shreveport, Louisiana 71162 Jose Mercado Upper Saddle River, New Jersey 07458 Suzan Matovu Uganda Entebbe

For Defendant Spirit Airlines: Jonathan E. DeMay Condon &amp Forsyth LLP Times Square Tower

MEMORANDUM-DECISION AND ORDER

Hon Brenda K. Sannes, Chief United States District Judge

I. INTRODUCTION

Plaintiffs pro se Gilbert Lau, Jose Mercado, and Suzan Matovu bring this action, on behalf of themselves and all others similarly situated, against Defendants Dr. Anthony Stephen Fauci, U.S. National Institute of Allergy and Infection (sic) Diseases, Transportation Security Administration, Spirit Airlines (“Spirit”),^[1] John Doe (also known as Marrio^[2]) of Spirit Airlines, AMTRAK National Railroad Passenger Corporation, Centers for Disease Control and Prevention, Dr. Rochelle P. Walensky, United States of America, United States of America Corporation, People's Republic of China, Russian Federation, Ukraine, Canada, Australia, Israel, Republic of Uganda, Republic of Colombia, New Zealand, Indonesia, World Health Organization, United Airlines, United Airlines Officer John Doe, and American Airlines, as well as ten thousand Jane Doe defendants and ten thousand John Doe defendants. (Dkt. No. 13, at 1-2, 6-9.) Plaintiffs' first amended complaint appears to assert claims under the Administrative Procedure Act, 5 U.S.C. §§ 703, 706(2)(C); the Air Carrier Access Act, 49 U.S.C. § 41705; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); 42 U.S.C. §§ 1983, 1985, 1986; 49 U.S.C. § 44702; and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12203, as well as New York and international law. (Dkt. No. 13, ¶¶ 1-3, 30-49, 51, 114.) Presently before the Court are Defendant Spirit's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5), (Dkt. No. 18), and Plaintiffs' motion to amend the first amended complaint, (Dkt. No. 16). Plaintiffs filed an “affirmation in opposition” to the motion to dismiss, (Dkt. No. 27), but stated they would “not file a memorandum of law because [adequacy of service] is a question of fact, not a question of law,” (id. ¶ 7). Spirit opposes Plaintiffs' motion to amend. (Dkt. No. 21.) For the following reasons, the Court grants Spirit's motion to dismiss and denies Plaintiffs' motion to amend the first amended complaint.

II. FACTS^[3]

Plaintiffs allege in the first amended complaint that Defendants violated the Constitution and various federal, state, and international laws by implementing and enforcing the “Federal Transportation Mask Mandate” and the “International Traveler Testing Requirement.” (Dkt. No. 13, ¶¶ 1-19.) Plaintiffs further allege that certain Defendants harassed, sexually abused, or discriminated against them for refusing to comply with the mask mandate. (Id. ¶¶ 3, 346-65, 396-424.) Plaintiffs request that the Court “permanently enjoin enforcement of the Federal Transportation Mask Mandate . . . and the International Traveler Testing Requirement” along with “any ban for refusing to wear coverings[,] . . . [and] any harassment for refusing to wear face coverings.” (Id. ¶¶ 1-3, 5-9.) Plaintiffs also seek declaratory judgment providing relief from airport and airline bans and “declaratory judgment that the [s]o-called sarscov2 virus has never been proven to exist as a matter of fact.” (Id. ¶¶ 16-19.)

III. DEFENDANT SPIRIT'S MOTION TO DISMISS

A. Standard of Review

“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). A motion under Federal Rule of Civil Procedure 12(b)(5) “is the proper vehicle for challenging the mode of delivery or lack of delivery of the summons and complaint.” Soos v. Niagara Cnty., 195 F.Supp.3d 458, 462 (W.D.N.Y. 2016) (citation omitted). “When a defendant raises a Rule 12(b)(5) ‘challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy.'” Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003) (quoting Preston v. New York, 223 F.Supp.2d 452, 466 (S.D.N.Y. 2002)).

A court “must look to matters outside the complaint” to determine the sufficiency of service of process. Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y. 2002). When faced with a motion to dismiss under Rule 12(b)(5), a plaintiff must, “through specific factual allegations and any supporting materials, make a prima facie showing that service was proper.” Kwon v. Yun, No. 05-cv-1142, 2006 WL 416375, at *2, 2006 U.S. Dist. LEXIS 7386, at *6 (S.D.N.Y. Feb. 21, 2006) (citations omitted). A court must “read [pro se litigants'] supporting papers liberally[] and . . . interpret them to raise the strongest arguments that they suggest,” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citation omitted), though “the liberal treatment afforded to pro se litigants does not exempt a pro se party ‘from compliance with relevant rules of procedural and substantive law,'” Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013) (quoting Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009)). A dismissal under Rule 12(b)(5) is without prejudice because such a dismissal “is not on the merits and has no res judicata effect.” 5B C. Wright & A. Miller, Federal Practice and Procedure § 1353 (3d ed.).

B. Analysis

Spirit moves to dismiss the first amended complaint under Rule 12(b)(5). (Dkt. No. 18.) Specifically, Spirit argues that Plaintiffs' service on Spirit was insufficient and invalid because Plaintiffs personally served Spirit with the original complaint-but not the first amended complaint-after they filed the first amended complaint. (Id. at 5-7.) Plaintiff's argue that the first amended complaint was served on Spirit and attach an affirmation of service showing that the original complaint, summons, and exhibits were personally served on Spirit on October 18, 2022, and the first amended complaint was mailed to Spirit on October 18, 2022, at 11:00 a.m.

(Dkt. No. 27, at 1, 4, 7.)^[4] In reply, Spirit argues that by attempting service of the first amended complaint by mail, Plaintiffs failed to comply with federal and applicable state laws of service. (Dkt. No. 30, at 4-9.)

As an initial matter, Spirit is correct in arguing that Plaintiffs' service of the original complaint after the first amended complaint had been filed was not proper, and Plaintiffs do not contend otherwise. “It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.” Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (citations omitted). Though, in general, “the original complaint is not superseded until the amended complaint is served,” id. at 669, that is not so where an amended complaint is filed before the original complaint is served, see TCS Cap. Mgmt., LLC v. Apax Partners, L.P., No. 06-cv-13447, 2008 WL 650385, at *10, 2008 U.S. Dist. LEXIS 19854, at *27-28 (S.D.N.Y. Mar. 7, 2008) (“Several . . . cases from this district have . . . h[el]d that service of the original complaint after an amended complaint has been filed is ineffective.”); see also Vesco, 556 F.2d at 669 n.4 (distinguishing from its holding-that an original complaint that has been served is not superseded until the amended complaint is served-a prior case in which “the original complaint was not served on the defendant until after the amended complaint had been filed”). That is, service is not properly effected where a plaintiff serves the original complaint after filing an amended complaint. See TCS, 2008 WL 650385, at *10, 2008 U.S. Dist. LEXIS 19854, at *27-28; see also Finkel v. Hall-Mark Elec. Supplies Corp., No. 07-cv-2376, 2009 WL 3401747, at *3, 2009 U.S. Dist. LEXIS 97435, at *6 (E.D.N.Y. Oct. 21, 2009) (“When . . . a plaintiff serve[s] a defendant with an original complaint before filing an amended pleading, the original complaint is only superseded when the plaintiff serves the amended complaint, not when the plaintiff files it.... But [if an original complaint is served after the plaintiff files an amended complaint], the general rule announced in Vesco may lead to a different result.”); McCarthy v. Brennan, No. 19-cv-1386, 2020 WL 5549072, at *5, 2020 U.S. Dist. LEXIS 169083, at *12 (N.D.N.Y. Sept. 16, 2020) (finding that service was not properly effected where a plaintiff served either the original complaint or the first amended complaint after filing a second amended complaint), aff'd sub nom. McCarthy v. DeJoy, No. 20-3600, 2022 WL 519180, 2022 U.S. App. LEXIS 4613 (2d Cir. Feb. 22, 2022); Gonzalez v. Am. Fed'n of State, Cnty. & Mun. Emps., AFL-CIO, No. 20-cv-505, 2020 WL 6263549, at *6, 2020 U.S. Dist. LEXIS 197437, at *16 (D. Conn. Oct. 23, 2020) (“A line of cases from other courts in this Circuit supports Defendants' argument that, because [Plaintiff] filed the Amended Complaint before serving the Original Complaint, service of the superseded Complaint was not proper.” (quotation marks and citation omitted)).

Here Plaintiffs filed their original complaint on May 4, 2022. (Dkt. No. 1.) On May 19, 2022, Plaintiffs requested an extension of time to serve Defendants and indicated that they would be filing a first amended complaint “without leave and consent by right.” (Dkt. No. 5.) The Court granted Plaintiffs' request for an extension of time to serve Defendants and ordered that Plaintiffs file proofs of service by July 8, 2022. (Dkt. No. 6.) Plaintiffs failed to do so, and on ...