Posr v. City of N.Y., 11 Civ. 986 (PGG)
| Decision Date | 24 September 2012 |
| Docket Number | 11 Civ. 986 (PGG) |
| Parties | POSR A. POSR, Plaintiff, pro se v. CITY OF NEW YORK, CHERAY JACKSON WHOLE FOODS, Defendants. |
| Court | U.S. District Court — Southern District of New York |
ECF CASE
Pro se Plaintiff Posr A. Posr brings this action against the City of New York and New York City Department of Consumer Affairs employee Cheray Jackson (together, the "City Defendants"), and Whole Foods, under 42 U.S. § 1983 and state law. In the Second Amended Complaint ("SAC")1 , Plaintiff alleges that he was unable to use his Electronic Benefit Transfer card ("EBT card")2 to buy aloe vera at a Whole Foods market because it is improperly categorized as a taxable item. All Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(2), (5), and (6). Because the SAC fails to state a claim against any of the Defendants, their motions to dismiss will be granted.
For purposes of deciding Defendants' motions to dismiss, the Court assumes the following factual allegations in the SAC to be true: On December 22, 2009, Plaintiff attempted to use his EBT card to buy unprepared, uncooked, aloe vera leaves at the Chelsea Whole Foodsmarket located on 24th Street at Seventh Avenue in Manhattan. (SAC ¶ 1)3 The aloe vera leaves were sold in the produce section of the store. (Id. 2) Under "Federal Guidelines," aloe vera is a food. (Id. ¶ 2.8) A Whole Foods cashier told Plaintiff that he could not use his EBT card to purchase aloe vera, however, because it is a taxable item. (Id. ¶¶ 3-4) Plaintiff told the cashier that aloe vera is produce, and is therefore not taxable. (Id. ¶ 5) Plaintiff complained to a supervisor at the customer service desk, who told Plaintiff that aloe vera did not appear as produce on his cashier machine. (Id. ¶ 6) Plaintiff ultimately purchased the aloe vera with cash, paying tax on his purchase. (Id. ¶ 7)
Plaintiff purchased aloe vera at the same Whole Foods market on five other occasions. (Id. ¶ 8) On each occasion, Plaintiff was told that he could not use his EBT card and paid tax on his purchase. (Id. ¶ 8) A sticker on the aloe vera leaves sold on December 22, 2009 read, (Id. ¶¶ 2.4, 2.6)
Plaintiff filed a complaint with Whole Foods, giving his name and home address, and a supervisor named "Charles" told him that someone would "get back to [him]." (Id. at 9) No one from Whole Foods ever contacted Plaintiff. (Id. ¶ 10)
On December 22, 2009, Plaintiff filed a complaint with the New York City Department of Consumer Affairs ("Consumer Affairs"). Plaintiff complained that he "was charged tax on Aloe Vera" and was "prevented from buying the Aloe leaf with [his] EBT card." (Id. ¶¶ 11 -13) Consumer Affairs employee Cheray Jackson responded to Plaintiff's complaint, telling him that his complaint was "invalid" because Whole Foods "told her that Aloe Vera wasnot food." (Id. ¶ 15) Plaintiff told Jackson that he "eats Aloe Vera often." (Id. ¶ 16) Jackson told Posr that it was "not her function to contact the Dept. of Taxation to determine whether or not the Aloe Vera had been falsely labeled." (Id. ¶ 19) Plaintiff told Jackson that "there was an issue of false advertisement" in that the aloe vera had been falsely labeled produce, "which forbids tax." (Id. ¶ 20)
On March 4, 2010, Plaintiff received a letter from Jackson "formally stating that [Consumer Affairs] was not the correct agency to address complaints about [a] false advertising, [b] unlawful taxation, or [Whole Foods' denial] of [an] EBT card on an item labeled 'produce.'" (Id. ¶ 21)
Plaintiff alleges that no Defendant "initiated communication of any kind with the New York State Dept. of Taxation and Finance to ascertain whether or not [Whole Foods] improperly taxed Aloe Vera as produce." (Id. ¶ 22)
On January 6, 2011, the New York City government website indicated that Consumer Affairs conducts inspections of supermarkets to determine, among other violations, whether there is improper taxation of items that are not taxable. (Id. ¶¶ 32-33)
Plaintiff filed his initial complaint in this action on or about February 4, 2011. (Dkt. Nos. 1,2) On May 3, 2011, Chief Judge Preska issued an order granting Plaintiff's application to proceed in forma pauperis, dismissing a number of his claims, and directing Plaintiff to submit an Amended Complaint within 60 days of the Order. (Dkt. No. 4) Judge Preska dismissed Plaintiff's claims against Consumer Affairs, which is not a suable entity. (Id. at 3; see Jones v. Westchester County Dep't of Corrections. Medical Dep't, 557 F.Supp.2d 408, 416 n.4 (S.D.N.Y. 2002) () (quoting Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (citing Fanelli v. Town of Harrison, 46 F. Supp. 2d 254 (S.D.N.Y. 1999))) She also dismissed Plaintiff's Section 1983 claim insofar as it alleged a failure to adhere to state law. (Id.)
Judge Preska also dismissed Plaintiff's Section 1983 claims alleging that Defendants failed to investigate his complaint regarding whether aloe vera is a taxable item, based on settled law that there is no constitutional right to an investigation. (Id. at 4) (citing DeShaney v. Winnebago Cnty. Dep't Soc. Servs., 489 U.S. 189, 196 (1989) (); Nieves v. Gonzalez, No. 05 Civ. 17(SR), 2006 WL 758615, at *4 (W.D.N.Y. Mar. 2, 2006)). Because Plaintiff's Complaint did not allege that Consumer Affairs' failure to investigate the proper taxation of aloe vera was motivated by class-based discriminatory animus, Judge Preska also concluded that Plaintiff had failed to state a claim under Section 1985(3). (Id.)
Judge Preska granted Plaintiff leave to amend in order to set forth his claims that his rights under the Food Stamp Act had been violated. (Id. at 4-5) Judge Preska emphasized that, in amending his complaint, Plaintiff "must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violation(s) occurred; where such violation(s) occurred; and why Plaintiff is entitled to relief." (Id- at 5-6) (emphasis in original). Plaintiff filed his Amended Complaint on June 22, 2011 (Dkt No. 6), and filed the SAC on October 11, 2011. (Dkt. No. 13)
Whole Foods and the City Defendants argue that Plaintiff failed to properly serve them, and that his claims should therefore be dismissed under Fed, R. Civ, P. 12(b)(2) and (5) for insufficient service of process and lack of personal jurisdiction.
[I]n considering a motion to dismiss pursuant to [Rule] 12(b)(5) for insufficiency of [service of] process, a Court must look to matters outside the complaint to determine whether it has jurisdiction.'" Koulkina v. City of New York, 559 F.Supp.2d 300, 311 (S.D.N.Y. 2008) ). "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.'" Id. (quoting Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003)).
Under Fed. R. Civ. P. 4(c)(1), "plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m)," which is no later than 120 days after the filing of the Complaint. Rule 4(m) provides, in pertinent part:
If a defendant is not served within 120 days after the complaint is filed, the court - upon motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
The Federal Rules of Civil Procedure provide that an individual may be served by any means authorized by the state in which service is attempted: by delivering service personally, by leaving a copy at the individual's dwelling with someone of suitable age and discretion who resides there, or by serving an authorized agent. Fed.R.Civ.P. 4(e). Under New York law, personal service on an individual may be accomplished by "delivering the summons within the state to the person to be served," or by "delivering the summons within the state to a person of suitable age and discretion at the ... usual place of abode of the person to be served .. . or by mailing the summons by first class mail." N.Y. C.P.L.R. § 308(1)-(2) (McKinney 2010).
Personal service on a corporation under New York law is governed by N.Y. C.P.L.R. § 311, which provides that service must be made on "an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service." N.Y. C.P.L.R. § 311(a)(1).
However, "[a] party appearing without counsel is afforded extra leeway in meeting the procedural rules governing litigation, and trial judges must make some effort to protect a party so appearing from waiving a right to be heard because of his or her lack of legal knowledge."4 Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) ().
Whole Foods alleges - and Plaintiff does not dispute - that Posr attempted to serve Whole Foods by delivering a copy of the Summons and original Complaint to...
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