Soos v. Niagara Cnty.

• Decision Date: 01 July 2016
• Docket Number: 1:15-CV-00870 EAW
• Citation: 195 F.Supp.3d 458
• Parties: Larry SOOS, Plaintiff, v. NIAGARA COUNTY, and the Niagara County Board of Elections, Nancy Smith, in her Capacity as Commissioner of the Niagara County Board of Elections, Mary Ann Casamento, in her capacity as Commissioner of The Niagara County Board of Elections, Nicholas Forester, personally, and in his capacity as Chair of the Niagara County Democratic Committee and Niagara County Democratic Committee, Defendants.
• Court: U.S. District Court — Western District of New York

195 F.Supp.3d 458

Larry SOOS, Plaintiff,

v.NIAGARA COUNTY, and the Niagara County Board of Elections, Nancy Smith, in her Capacity as Commissioner of the Niagara County Board of Elections, Mary Ann Casamento, in her capacity as Commissioner of The Niagara County Board of Elections, Nicholas Forester, personally, and in his capacity as Chair of the Niagara County Democratic Committee and Niagara County Democratic Committee, Defendants.

1:15-CV-00870 EAW

United States District Court, W.D. New York.

Signed July 1, 2016

Frank T. Housh, Buffalo, NY, for Plaintiff.

Melinda G. Disare, Riane F. Lafferty, Bond, Schoeneck & King, PLLC, Buffalo, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Larry Soos ("Plaintiff") attempts to bring a 42 U.S.C. § 1983 action against his former employer, the Niagara County Board of Elections (the "Board"); two former commissioners of the Board, Nancy Smith and Mary Ann Casamento; Niagara County; the Niagara County Democratic Committee (the "Committee"); and Nicholas Forester, the Committee's current chair (collectively "Defendants") for violating his First Amendment right to free speech. Plaintiff has failed in a number of ways to effect proper service. The summonses served were not only untimely, but also were deficient in content. Additionally, one Defendant, Nancy Smith, has yet to be served at all, properly or improperly. Citing the above flaws, Defendants Niagara County, the Board, Nancy Smith and Mary Ann Casamento ("Moving Defendants") have moved to dismiss the action. The Court, in its discretion, denies the motion to dismiss and grants Plaintiff an additional thirty (30) days to effect proper service upon Defendants for the reasons set forth below.

FACTUAL BACKGROUND

On September 30, 2015, just two days before the statute of limitations was set to expire, Plaintiff filed his complaint alleging a violation of 42 U.S.C. § 1983, occurring on October 2, 2012, against Defendants. (Dkt. 1).

Plaintiff did not file proof of service with the Court, as required by Federal Rule of Civil Procedure 4(l )(1) and Local Rule of Civil Procedure 4, until he filed his response to the instant motion, attaching the proof of service affidavits as exhibits. (Dkt. 11-2 through 11-6). Plaintiff's proof of service indicates that Defendants Niagara County and the Board were served on February 2, 2016. (Dkt. 11-5; Dkt. 11-6). Moving Defendants' exhibits to their motion to dismiss corroborate that date. (Dkt. 3-1 at ¶ 7; Dkt. 3-2; Dkt. 3-3). Plaintiff's affidavits further represent that Mary Ann Casamento was also served on February 2, 2016 (Dkt. 11-3), though Defendants indicate that, upon information and belief, service on Casamento occurred on February 3, 2016. (Dkt. 3-1 at ¶ 8; Dkt. 3-4). Service on Niagara County and the Board, thus, occurred 125 days after Plaintiff filed his complaint, and service on Casamento occurred at most 126 days after Plaintiff filed his complaint. All three of the above summonses were served without the Clerk of the Court's signature, and without the Court's seal, as required by Federal Rule of Civil Procedure 4(a)(1)(F)–(G). (Dkt. 3-2 through 3-4). The parties do not dispute that Nancy Smith has not yet been served. (Dkt. 3-1 at ¶ 9; Dkt. 3-5 at 3; Dkt. 11 at ¶ 6; Dkt. 11-1 at 5).

On February 23, 2016, Moving Defendants filed the instant motion to dismiss for lack of personal jurisdiction, insufficient process, and insufficient service of process pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(4), and 12(b)(5). (Dkt. 3; Dkt. 3-5).

DISCUSSION

I. Standard of Review

A. Rule 12(b)(2) —Lack of Personal Jurisdiction

"The requirement that a court have personal jurisdiction flows not from Art. III, but from the Due Process Clause. ... It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. ‘[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.’ " Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd. , 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (quoting Miss. Publ'g Corp. v. Murphree , 326 U.S. 438, 444–45, 66 S.Ct. 242, 90 L.Ed. 185 (1946) ), superseded by statute on other grounds, Futures Trading Practices Act of 1992 § 211, Pub. L. No. 102-546, 106 Stat. 3590 (1992). "On a Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction, plaintiff bears the burden of showing that the court has jurisdiction over the defendant." In re Magnetic Audiotape Antitrust Lit. , 334 F.3d 204, 206 (2d Cir.2003). "Prior to discovery, a plaintiff may survive a Rule 12(b)(2) motion to dismiss by pleading in good faith legally sufficient allegations of jurisdiction." DiFillippo v. Special Metals Corp. , 299 F.R.D. 348, 352 (N.D.N.Y.2014) (citing Metro. Life Ins. Co. v. Robertson – Ceco Corp. , 84 F.3d 560, 566 (2d Cir.1996) ). "That is, where a court relies only upon the pleadings and supporting affidavits, a plaintiff need only make a prima facie showing of personal jurisdiction over a defendant." Id. (citing CutCo Indus., Inc. v. Naughton , 806 F.2d 361, 364 (2d Cir.1986) ).

B. Rule 12(b)(4) & (5) —Insufficient Process and Insufficient Service of Process

"Objections to sufficiency of process under Fed. R. Civ. P. 12(b)(4) must identify substantive deficiencies in the summons, complaint or accompanying documentation." DiFiilippo , 299 F.R.D. at 352–53 (citation omitted). "[A] Rule 12(b)(4) motion is proper only to challenge noncompliance with the provisions of Rule 4(b)¹ or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons." Jackson v. City of N.Y. , No. 14–CV–5755 (GBD)(KNF), 2015 WL 4470004, at *4 (S.D.N.Y. June 26, 2015) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed. 2004) ).

"A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or lack of delivery of the summons and complaint." Id. (quoting Wright & Miller, supra , § 1353 ). "[I]n considering a motion to dismiss pursuant to 12(b)(5) for insufficiency of process, a Court must look to matters outside the complaint to determine whether it has jurisdiction." Darden v. DaimlerChrysler N. Am. Holding Corp. , 191 F.Supp.2d 382, 387 (S.D.N.Y.2002). "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) (citation omitted).

II. Deficiencies in Service

A. Insufficient Process

The Federal Rules of Civil Procedure (the "Federal Rules") provide a list of the content that a summons must contain. That list includes the signature of the clerk and the Court's seal. See Fed. R. Civ. P. 4(a)(1)(F)–(G). "Although minor or technical defects in a summons in certain circumstances do not render service invalid, defects that are prejudicial to the defendant or show a flagrant disregard for the rule do." Osrecovery, Inc. v. One Grp. Int'l, Inc. , 234 F.R.D. 59, 60 (S.D.N.Y.2005). Courts in the Second Circuit appear to be split as to whether serving an unsealed, unsigned summons constitutes flagrant disregard for the rule. Compare Macaluso v. N.Y. State Dep't of Envtl. Conservation , 115 F.R.D. 16, 18 (E.D.N.Y.1986) ("This Court ... does not view service of an unsigned, unsealed summons not issued by the court clerk as a mere technical defect. Instead, it amounts to a complete disregard of the requirements of process set forth clearly and concisely in Rule 4. Accordingly, the Court declines to exercise its discretion to grant leave to amend process."), and Bd. of Educ. of Smithtown Cent. Sch. Dist. v. Factor , No. 88 CV 2760, 1989 WL 47707, at *2 (E.D.N.Y. Apr. 27, 1989) ("Service of an unsigned and unsealed summons is not a harmless error that can be cured nunc pro tunc pursuant to Rule 4(h).² "), with Douglass v. Fletcher Allen Health Care, Inc. , No. 1:04–CV–256, 2005 WL 1114357, at *1 (D.Vt. May 5, 2005) ("An unsigned, unsealed summons ‘goes to form rather than substance ...’ and ‘[a]mendments are liberally allowed as courts should not deny a plaintiff her day in court due to technical imperfections in service.’ ") (quoting Durant v. Traditional Invs., Ltd. , No. 88 Civ. 9048 (PKL), 1990 WL 33611, at *4, 1990 U.S. Dist. LEXIS 3074, at *9–10 (S.D.N.Y. Mar. 22, 1990) ) (alterations in original), and Krieger v. Am. Express Fin. Advisors , No. 98–CV–0782E, 2000 WL 207119, at *4 (W.D.N.Y. Feb. 16, 2000) (distinguishing the facts of the case from those in Macaluso , holding, "given the unique circumstances of a then-pro se plaintiff and the granting of the nunc pro tunc motion, this Court regards the absence of the Clerk's signature and the Court's seal as mere technical defects"); see also DeLuca v. AccessIT Grp., Inc. , 695 F.Supp.2d 54, 65–66 (S.D.N.Y.2010) (collecting cases).

Here, despite the Court Clerk's issuance of proper summonses as to all Defendants on October 1, 2015, containing both the signature of the Clerk and the Court's seal (Dkt. 2), Plaintiff served unsealed, unsigned summonses four months later on Moving Defendants, save Nancy Smith. (Dkt. 3-2 through 3-4; Dkt. 11-3; Dkt. 11-5 through 11-6). The Court can only assume that Plaintiff's attorney printed the summonses himself and had them served without giving any occasion to the clear mandate of Fed. R. Civ. P. 4(a)(1)(F)–(G).

Despite the above, the Court will follow the course taken in DeLuca v. AccessIT Group, Inc. , 695 F.Supp.2d at 65-66, in declining to resolve whether the unsealed,...