Phillip v. The City of New York et al

Filing 48

Order dismissing all claims against defendant Martha Rodriguez-Torres (Local Instructional Superintendent). Party Martha Rodriguez-Torres terminated.Ordered by Senior Judge I. Leo Glasser on 5/7/2012. (Green, Dana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------x
CASEY PHILLIP,
Plaintiff,

Memorandum and Order
09 Civ. 442

- against THE CITY OF NEW YORK, et al.
Defendants.
------------------------------------------------------x
GLASSER, United States District Judge:

Plaintiff Casey Phillip (“plaintiff”), a former teacher with the New York City
Department of Education (“DOE”), commenced this action February 3, 2009 against the
City of New York, the DOE, and former supervisors Principal Daysi Garcia and Local
Instructional Superintendent, Martha Rodriguez–Torres (“Rodriguez-Torres”). On July
21, 2010, defendants City of New York, DOE, and Principal Daysi Garcia (collectively,
“NYC”) moved for summary judgment. Although not representing Rodriguez-Torres,
counsel to NYC argued in their motion papers that plaintiff had not properly served her
and urged that the Court dismiss all claims against her, sua sponte, pursuant to Federal
Rule of Civil Procedure 4(m) (“Rule 4(m)”). Rodriguez-Torres filed no answer to the
Complaint, is not currently represented by counsel, and has entered no appearances in
the three years litigation has been pending. On April 19, 2011 the Court granted in part
and denied in part NYC’s motion for summary judgment. See Phillip v. City of New
York, No. 09 Civ. 442 (ILG), 2012 WL 1356604 (E.D.N.Y. Apr. 19, 2012). Among other
things, the Court ordered plaintiff to show cause why all claims against RodriguezTorres should not be dismissed for failure to effect service. Id. at *19.

1

Plaintiff responded by filing an affidavit from a licensed process server, Moses
Osayame (“Osayame”). See Proof of Service (Dkt. No. 47-1). The affidavit consists of a
pre-prepared form with check boxes listing options for effecting service that appear to
correspond to the three methods of effecting service pursuant to Fed. R. Civ. P. 4(e)(2).
Osayame has checked two contradictory options. The first checked box states that “I
personally served the summons on the individual at (place) District 19, 574 Dumont
Ave, Brooklyn, NY 11207 on (date) 2/24/09.” This, apparently, was completed in error;
plaintiff’s counsel concedes Rodriguez-Torres was not personally served. See
Affirmation of Anthony C. Ofodile, Esq. (Dkt. No. 47) (“Ofodile Aff.”) at ¶¶ 2, 4. The
second checked box states “I served the summons on (name of individual) Martin
Wernstein, who is designated by law to accept service of process on behalf of (name of
organization) District 19 Supr. Martha Roderiguez-Torres (on date) 2/24/09.”
Plaintiff’s counsel also submitted an affidavit in which he affirmed that Osayeme:
received the Summons and Complaint from my Office on
February 23, 2009, and served it on February 24, 2009, on
Martha
Rodriguez-Torres,
the
Local
Instructional
Superintendent, by leaving the same at her Office with
Martin Weintein [sic], a person of suitable age who was
authorized to accept service and did accept service on behalf
of the Superintendent.”
See Ofodile Aff. at ¶ 2. Plaintiff argues that service on “a person of suitable age and
discretion at the office of the Superintendent who agreed to accept service and accepted
service on her behalf at her office suffices as adequate and proper service under the
law.” Id. at ¶ 5.
Plaintiff has not identified which provision of state or federal law he relies on.
Pursuant to the Federal Rules of Civil Procedure, service may be made on an individual
2

pursuant to the relevant state law, Fed. R. Civ. P. 4(e)(1), or by one of three methods
permitted under the federal rules: personal service; delivery to the individual’s abode; or
service upon an agent, Fed. R. Civ. P. 4(e)(2)(A)-(C). It is undisputed that RodriguezTorres was not personally served. The federal rules do not permit non-personal service
at an individual’s place of business. See Fed. R. Civ. P. 4(e)(2)(B); MCC Energy, Inc. v.
Miller, 08 Civ. 4353 (DAB), 2009 WL 2981914, at *4 (S.D.N.Y. Sept. 14, 2009) (“Rule
4(e)(2)(B) provides for service by ‘leaving a copy . . . at the individual’s dwelling or
usual place of abode’ (emphasis added), not at the individual’s business address.”). Nor
has plaintiff shown that Martin Wernstein was an agent of Rodriguez-Torres for
purposes of accepting process on her behalf. Plaintiff bears the burden of establishing
process has been effective. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d
Cir. 1985). However, aside from conclusory statements that Wernstein was authorized
to accept service, plaintiff has provided no facts or law that would indicate Wernstein
was an agent “authorized by appointment or by law” to receive service of process
pursuant to Fed. R. Civ. P. 4(e)(2)(C).
Presumably, therefore, plaintiff relies upon state law. Service may be made on an
individual by any method permitted under state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the district court is located.
Fed. R. Civ. P. 4(e)(1). New York law, in turn, allows non-personal service, upon an
individual by:
delivering the summons within the state to a person of
suitable age and discretion at the actual place of business . . .
of the person to be served and by either mailing the
summons to the person to be served at his or her last known
residence or by mailing the summons by first class mail to
3

the person to be served at his or her actual place of business
in an envelope bearing the legend “personal and
confidential” and not indicating on the outside thereof, by
return address or otherwise, that the communication is from
an attorney or concerns an action against the person to be
served, such delivery and mailing to be effected within
twenty days of each other.
N.Y. Civ. Prac. Law & Rules (“CPLR”) § 308(2) (emphasis added). “The first two steps
of personal service pursuant to § 308(2), delivery and mailing of the summons, are
jurisdictional requirements, and failure to properly perform either of them results in
dismissal of an action.” Stop & Shop Supermarket Co. LLC v. Goldsmith, No. 10 Civ.
3052 (KMK), 2011 WL 1236121, at *4 (S.D.N.Y. Mar. 31, 2011) (citing 2 Weinstein, Korn
& Miller, N.Y. Civil Practice: CPLR ¶ 308.13a (2011 ed.) (“[D]elivery and mailing are
essential in order to obtain jurisdiction over the defendant.” (emphasis in original))).
As a result of her participation in depositions, See Declaration of Jane E.
Andersen dated July 21, 2010 (Dkt. No. 33), Ex. U & V, Rodriguez-Torres is presumably
aware she has been named as a defendant in this suit. However, actual notice does not
cure deficient service. Nat’l Dev. Co. v. Triad Holding Corp., 930 F.2d 253, 256 (2d Cir.
1991) (“We reject the notion that ‘actual notice’ suffices to cure a void service . . . .”);
Raschel v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 24, 504 N.E.2d 389 (N.Y. 1986)
(“When the requirements of service have not been met, it is irrelevant that defendant
may have actually received the documents.”). “Service of process must be made in strict
compliance with statutory methods for effecting personal service upon a natural person
pursuant to CPLR 308.” Santiago v. Honcrat, 79 A.D.3d 847, 847-48, 912 N.Y.S.2d 419,
419-20 (2d. Dep’t 2010) (quotation and citation omitted).

4

Rodriguez-Torres was not properly served because plaintiff failed to mail her a
copy of the summons. Rule 4(m) of the Federal Rules of Civil Procedure provides:
If a defendant is not served within 120 days after the
complaint is filed, the court . . . 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. 1
Although a dismissal under Rule 4(m) is without prejudice to refiling, plaintiff would
not be able to revive his claim because the statute of limitations has expired. Where
dismissal without prejudice would constitute a de facto dismissal with prejudice, the
court must carefully consider the impact such an action will have on the parties. Harper
v. City of New York, 09 Civ. 5571 (JG) (SMG), 2010 WL 4788016, at *9 (E.D.N.Y. Nov.
17, 2010). However, the Court need not grant an extension simply because plaintiff will
otherwise be barred from bringing his claims. Id. (citing Zapata v. City of New York,
502 F. 3d 192, 197 (2d Cir. 2007) (“Where, as here, good cause is lacking, but the
dismissal without prejudice in combination with the statute of limitations would result
in a dismissal with prejudice, we will not find an abuse of discretion . . . so long as there
are sufficient indications on the record that the district court weighed the impact that a
dismissal or extension would have on the parties.” (footnote omitted))).
Here, it has been three and a half years since plaintiff attempted to serve the
summons on Rodriguez-Torres. Rodriguez-Torres did not file an answer and plaintiff
has been on notice since March, 2009 that she contests the validity of service. See

The Court notes that plaintiff attempted to serve Rodriguez-Torres on February 24, 2009, well-within
120 days of filing the Complaint. However, because the service was deficient, Rodriguez-Torres has never
been served.

1

5

Answer to Complaint dated March 15, 2009 (Dkt. No. 5) at 1 n.1 (“Martha RoderiguezTorres . . . has not been properly served. . . . Our office has advised plaintiff’s attorney of
this and has provided him with her correct business address by letter dated March 11,
2009 in order to assist with the proper service.”). Plaintiff was again reminded of this
dispute by NYC’s response to the Amended Complaint, to which Rodriguez-Torres also
did not respond. See Answer Amended Complaint dated October 19, 2009 (Dkt. No. 15)
at 1 n.1. Plaintiff made no attempt to properly serve Rodriguez-Torres or to seek an
extension of time to do so. Plaintiff apparently believed that service was proper, Ofodile
Aff. ¶ 4, but has not shown any sound legal basis for that belief. Moreover, in the more
than three years’ since Rodriguez-Torres’ answer was due, plaintiff has taken no steps to
address this matter or to pursue a default judgment.
Accordingly, plaintiff’s claims against Rodriguez-Torres are dismissed pursuant
to Fed. R. Civ. P. 4(m). Because he did not acknowledge that Rodriguez-Torres was not
properly served, plaintiff did not request an extension of time in which to serve her.
However, in light of the foregoing, no extension of time will be granted.

SO ORDERED.
Dated:

Brooklyn, New York
May 7, 2012

__/s/_______________________
I. Leo Glasser
United States District Judge

6