Welsh v. United Parcel Services, Inc.

Filing 27

MEMORANDUM DECISION AND ORDER. The defendant's 19 motion to dismiss is granted. The plaintiff's 16 motion to consolidate is denied as moot. Ordered by Judge Ann M. Donnelly on 3/6/2025. (DG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
:
ROY WELSH,
:
Plaintiff,
: MEMORANDUM DECISION AND
ORDER
– against –
:
24-CV-3876 (AMD) (PK)
:
UNITED PARCELS SERVICE, INC., AND
:
LLOYD HALL,
Defendants.

:

:
--------------------------------------------------------------- X
ANN M. DONNELLY, United States District Judge:
Before the Court is Defendant UPS’s motion to dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(5) and 12(b)(6). The case arises from alleged wage, hour, and workplace
misconduct at United Parcels Service. 1 After Judge Margo Brodie dismissed a related action for
lack of subject matter jurisdiction, the plaintiff refiled his claims in New York Supreme Court.
The defendant timely removed the case. For the reasons explained below, the motion is granted.
BACKGROUND
The Court assumes familiarity with the facts and recounts the history of the case only to
the extent necessary to explain the Court’s decision.
On March 18, 2020, three plaintiffs, current and former UPS employees, filed an action
against UPS in the Eastern District of New York, alleging wage and hour violations under
federal and state law and civil rights violations under federal law. (ECF No. 1 ¶ 1 (citing Murray
v. United Parcels Serv., Inc., No. 20-CV-1427 (E.D.N.Y.)).) The plaintiff in this action, Roy

1

The plaintiff’s counsel agreed at oral argument to dismiss his claims against the individual defendant,
Lloyd Hall, whom he had not served.

Welsh, was added as a plaintiff in the second amended complaint. Welsh’s claims survived the
defendant’s motion to dismiss. See Murray v. United Parcels Serv., Inc., No. 20-CV-1427, 2022
WL 4468295, at *1 (E.D.N.Y. Sept. 25, 2022) (order granting in part and denying in part the
defendants’ motion to dismiss the second amended complaint).
On October 26, 2023, after multiple amendments to the complaint, Judge Brodie
dismissed the action without prejudice for lack of subject matter jurisdiction because the
plaintiffs had withdrawn the remaining federal law claim. (ECF No. 1 ¶ 2; see ECF No. 1-2 at
62 (Judge Brodie’s order dismissing the fifth amended complaint).)
On January 31, 2024, the plaintiff filed a complaint against UPS and Lloyd Hall in the
Supreme Court of New York, Kings County, captioned Roy Welsh v. United Parcels Service,
Inc. and Lloyd Hall, Index No. 503173/2024 (“State Court Action”). 2 The complaint tracks the
allegations in the previous federal court action and asserts causes of action for retaliation and
discrimination under the New York City Human Rights Law (“NYCHRL”), a common law
claim for unjust enrichment, and a claim pursuant to New York Labor Law § 740. 3 See Welsh v.
United Parcels Service, Inc., Ind. No. 503173/2024 (Sup. Ct., Kings Cnty.), Doc. No. 1 ¶¶ 48–58
(retaliation under NYCHRL); id. ¶¶ 59–69 (unjust enrichment); id. ¶¶ 70–76 (aiding and abetting

2

The defendant attached the plaintiff’s previous federal court complaint to the notice of removal but not
the operative state court complaint. (See ECF. No. 1-1.) The defendant should have filed the state court
complaint consistent with 28 U.S.C. § 1446(a), which requires a removing party to file the notice of
removal “together with a copy of all . . . pleadings . . . in such action.” In any event, there is no dispute
that the complaint filed in the State Court Action is the operative complaint — and, indeed, the
complaint which the defendant asks the Court to dismiss.

3

While the complaint also refers to the state human rights law, N.Y. Exec. Law § 296 (see Welsh v.
United Parcels Service, Inc, Ind. No. 503173/2024 (Sup. Ct., Kings Cnty.), Doc. No. 1 ¶ 1), the plaintiff
does not expressly assert a violation of this statute as a cause of action. However, nothing about that
statute or any claim that may be available to the plaintiff under it alters the Court’s analysis.

2

retaliation under NYCHRL); id. ¶¶ 77–83 (discrimination under NYCHRL); id. ¶¶ 84–98
(Section 740).
Tyrone Blackburn, the plaintiff’s counsel, maintains that on February 12, 2024, he
emailed the complaint to opposing counsel — including the same counsel who have represented
UPS in related litigation for the last five years — and requested that they waive formal service.
(See ECF No. 10-1 (Affirmation of Tyrone Blackburn) ¶¶ 9–10.) 4 UPS’s counsel replied that
she was not authorized to accept service and that the plaintiff’s counsel should serve the
defendant through its registered New York state agent. (Id. ¶ 13; see also ECF No. 10-4; CPLR
311(a)(1) (providing for service on a foreign corporation by personal service on any agent
“authorized by appointment or by law to receive service”).) Mr. Blackburn affirms that he hired
a process service company on April 5, 2024 and expected service to be effected by April 7, 2024.
(ECF No. 10-1 ¶¶ 17, 20; ECF Nos. 10-6, 10-8, 10-9.) Although the process server never
confirmed that service was successful, Mr. Blackburn maintains that it is typical for a server to
share confirmation of service several months after service and he had no reason to believe
service was delayed in this case. (ECF No. 10-1 ¶¶ 21, 26.)
On May 1, 2024, Mr. Blackburn emailed the process server to request the affidavits of
service, which he had still not received. (Id. ¶ 23; ECF No. 10-11.) The process server emailed
the affidavits to the plaintiff’s counsel the following day; they were dated May 2, 2024 and were

4

Mr. Blackburn originally filed his affirmation in response to the defendant’s request for a pre-motion
conference. (ECF No. 10.) The defendant asked the Court to strike it because the affirmation violated
the Court’s individual rules. (ECF No. 12.) When a party moves to dismiss for insufficient service of
process pursuant to Rule 12(b)(5), the Court “may look beyond the pleadings, including to affidavits and
supporting materials, to determine whether it has jurisdiction and service was proper.” Cyrus v.
Lockheed Martin Corp., No. 20-CV-6397, 2022 WL 203750, at *2 (E.D.N.Y. Jan. 24, 2022) (quoting
Rowell v. Fairway Supermarket, No. 18-CV-01938, 2019 WL 570709, at *5 (S.D.N.Y. Jan. 16, 2019)).
In any event, the defendant has not renewed its request to strike the affirmation, and the Court will
consider this document and the attached materials to determine whether and when service was complete.

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not notarized. (ECF No. 10-1 ¶¶ 24–25; ECF No. 10-12.) Believing that there was an error with
the service date, Mr. Blackburn called the process server. (ECF No. 10-1 ¶ 26.) He further
affirms that he did not learn until June 3, 2024 that the complaint and summons were served on
May 2 and not, as he believed, on April 7. (Id. ¶ 29.) A representative of the process service
company that Mr. Blackburn used submitted an affidavit, stating that the delay in service was
caused by a third-party server’s “clerical error.” (ECF No. 10-13 ¶ 15.) In any event, Mr.
Blackburn does not dispute that the defendants were served on May 2, 2024, regardless of the
reason for the delay.
UPS moves to dismiss pursuant to Rules 12(b)(5) and 12(b)(6). As detailed below, the
defendant argues that the plaintiff’s claims are untimely because CPLR § 205(a), the tolling
provision on which the plaintiff relies, requires a party to serve the complaint within six months
of a qualifying dismissal. (ECF No. 1 ¶ 4.) The defendant contends that because the plaintiff did
not serve the complaint until May 2 — six months and six days after Judge Brodie’s October 26,
2023 dismissal order — the tolling provision is inapplicable. (ECF No. 19-1 at 2–7.)
The plaintiff opposes the motion on various grounds. His most persuasive argument is
that the defendant has been on notice of these claims for years and the plaintiff’s claims —
which have already survived a motion to dismiss on the merits — should not be dismissed
because of a minor delay in formal service. (ECF No. 22-1 at 2.) He also asks the Court to
extend the deadline for service. (Id.)
LEGAL STANDARD
Rule 12(b)(5) allows a court to dismiss a complaint for “insufficient service of process.”
Fed. R. Civ. P. 12(b)(5). In general, a motion to dismiss under Rule 12(b)(5) is jurisdictional
because a federal court to may only exercise personal jurisdiction over a defendant, if “the

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plaintiff’s service of process upon the defendant . . . [was] procedurally proper.” Diaspora v.
Columbus Ale House, Inc., No. 22-CV-4677, 2024 WL 779057, at *2 (E.D.N.Y. Feb. 26, 2024)
(quoting Westchase Res. Assets II, LLC v. Gupta, No. 14-CV-1435, 2016 WL 3688437, at *2
(E.D.N.Y. July 7, 2016)); see also Sartor v. Toussaint, 70 F. App’x 11, 13 (2d Cir. 2002)
(summary order) (“A judgment is void for lack of personal jurisdiction over the defendant where
service of process was not properly effected.”).
Under Rule 12(b)(6), a defendant may move to dismiss a cause of action for “failure to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule
12(b)(6) challenge, a complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631
F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although a
plaintiff need not set forth “detailed factual allegations,” a complaint that includes only “labels
and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. A court considering a Rule 12(b)(6) motion “accept[s] all factual
allegations in the complaint as true and draw[s] all inferences in the plaintiff’s favor.” Walker v.
Schult, 717 F.3d 119, 124 (2d Cir. 2013).
“Where a defendant moves to dismiss under both Fed. R. Civ. P. 12(b)(5), for insufficient
service of process, and Fed. R. Civ. P. 12(b)(6), for failure to state a claim, the trial court will
ordinarily ‘consider[ ] the jurisdictional issues first.’” George v. Pro. Disposables Int’l, Inc., 221
F. Supp. 3d 428, 442 (S.D.N.Y. 2016) (quoting Darden v. DaimlerChrysler N. Am. Holding
Corp., 191 F. Supp. 2d 382, 386 (S.D.N.Y. 2002)). However, the defendant’s arguments for

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dismissal all rely on a statute of limitations defense, which “is properly treated as a Rule 12(b)(6)
motion to dismiss for failure to state a claim upon which relief can be granted.” Goodman v.
Loc. 804 Union of Int’l Bhd. of Teamsters, No. 21-CV-4655, 2023 WL 6283250, at *3 (E.D.N.Y.
Sept. 26, 2023) (quoting Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989));
see also Noboa v. MSC Crociere S.p.A., No. 08-CV-2896, 2009 WL 1227451, at *2 (S.D.N.Y.
May 5, 2009) (“An action should be dismissed pursuant to Rule 12(b)(6) where documents
properly considered on a motion to dismiss reveal that the action is time barred.”). The Court,
therefore, considers the defendant’s motion under Rule 12(b)(6).
DISCUSSION
The defendant does not argue that service was improper or insufficient or that the Court
does not have personal jurisdiction over the defendant because of deficient service. Instead, the
defendant contends that the plaintiff’s claims are untimely because they are not entitled to the
tolling provisions of CPLR § 205(a), which provides in relevant part:
If an action is timely commenced and is terminated in any other manner than by a
voluntary discontinuance, a failure to obtain personal jurisdiction over the
defendant, a dismissal of the complaint for neglect to prosecute the action, or a final
judgment upon the merits, the plaintiff . . . may commence a new action upon the
same transaction or occurrence or series of transactions or occurrences within six
months after the termination provided that the new action would have been timely
commenced at the time of commencement of the prior action and that service upon
defendant is effected within such six-month period.
The parties agree on several important points. They do not dispute that the initial matter
was timely commenced in federal court or that the plaintiff’s claims in this action would be
barred by the statute of limitations if CPLR § 205(a) does not apply. See NYC Admin. Code § 8502(d) (“A civil action commenced under this section must be commenced within three years after
the alleged unlawful discriminatory practice or act of discriminatory harassment or violence as set
forth in chapter 6 of this title occurred.”); Lia v. Saporito, 909 F. Supp. 2d 149, 167 (E.D.N.Y.

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2012) (“In New York, . . . unjust enrichment claims seeking monetary damages are governed by
the three-year statute of limitations under Section 214(3) of the [N.Y. C.P.L.R.].”); N.Y. Lab.
Law § 740(4)(a) (“An employee who has been the subject of a retaliatory action in violation of this
section may institute a civil action in a court of competent jurisdiction for relief as set forth in
subdivision five of this section within two years after the alleged retaliatory action was taken.”). 5

They also agree that the first federal action was terminated in a manner that would allow the
plaintiff to take advantage of the saving statute. Therefore, the only question currently before the
Court is whether the six-day delay in service renders the plaintiff’s claims ineligible for the tolling
provided by CPLR § 205(a). The facts before the Court and the statutory text compel the

conclusion that the plaintiff cannot take advantage of the tolling provision, even though that
outcome appears to be inconsistent with the purpose of CPLR § 205(a).
“Tracing its roots to seventeenth century England, the remedial concept embodied in
CPLR 205(a) has existed in New York law since at least 1788.” Malay v. City of Syracuse, 25
N.Y.3d 323, 327 (2015) (quoting Reliance Ins. Co. v. PolyVision Corp., 9 N.Y.3d 52, 56 (2007)).
“The statute and its predecessors were designed to insure to the diligent suitor the right to a
hearing in court till he reaches a judgment on the merits, by remedying what might otherwise be
the harsh consequence of applying a limitations period where the defending party has had timely
notice of the action.” Id. (cleaned up). “The statute’s ‘broad and liberal purpose is not to be
frittered away by any narrow construction.’” Id. (quoting Gaines v. City of New York, 215 N.Y.
533, 539 (1915)). The Court of Appeals has noted that its interpretation of CPLR § 205 is “in
keeping with the statute’s remedial purpose.” Id.; see also Goldstein v. New York State Urb.

5

To the extent the plaintiff asserts a cause of action under the state human rights law, that claim is also
subject to a three-year statute of limitations. See Koerner v. State, 62 N.Y.2d 442, 446 (1984).

7

Dev. Corp., 13 N.Y.3d 511, 521 (2009) (applying CPLR § 205(a) to claims brought under New
York’s eminent domain laws based, in part, on the statute’s “‘broad and liberal purpose’ of
remedying what might otherwise be the harsh consequence of applying a limitations period
where the defending party has had timely notice of the action” (quoting Matter of Morris Invs. v.
Comm’r of Fin. of City of N.Y., 69 N.Y.2d 933, 935 (1987)); Hakala v. Deutsche Bank AG, 343
F.3d 111, 115 (2d Cir. 2003) (“The purpose of § 205(a) is to avert unintended and capricious
unfairness by providing that if the first complaint was timely but was dismissed for . . . curable
reasons, the suit may be reinstituted within six months of the dismissal.”).
The defendant, however, argues that the text of the statute, as well as a substantial body
of case law, teaches a simple lesson: the statutory requirement that service be effected within six
months of termination of the previous action is precisely that — a requirement. (See ECF No.
19-1 at 4–5 (collecting cases).) See also Moscati v. Kelly, No. 15-CV-04641, 2016 WL
3034495, at *7 (S.D.N.Y. May 26, 2016) (holding that the saving provision was not available to
the defendants because “[a]lthough Plaintiffs filed their complaint [within six months of
termination], they did not serve Defendants until . . . more than six months after the termination
of the [previous] suit”); Termination of Prior Action, Siegel, N.Y. Prac. § 52 (6th ed.) (“The
statute . . . requires, explicitly, that service in the new action be made within the 6 months.”).).
Here, the plaintiff does not — and cannot — argue that service was made within six months of
termination. Although the plaintiff’s counsel insists that he thought that service was complete on
April 7, 2024 — well in advance of the April 26 deadline — there is no dispute that UPS was not
served until May 2, 2024, six months and six days after the prior action was terminated. For this
reason alone, the saving provision of CPLR § 205(a) is unavailable to the plaintiff.

8

A state court recently reached the same decision in Murray v. United Parcels Service,
Inc., Index No. 502791/2024 (Sup. Ct. Kings Cnty.), a related case with almost identical
procedural facts. The same defendant moved to dismiss for the same reasons they move for
dismissal in this case — that service was not effected within six months of dismissal. On
September 16, 2024, Justice Capell granted the defendant’s motion with prejudice, pursuant to
CPLR § 205(a), and declined to extend the time to serve pursuant to CPLR § 306-b. Murray,
Index No. 502791/2024, Dkt. No. 38. This case requires the same result.
The plaintiff asks the Court to use its discretion under CPLR § 306-b to extend the
deadline for service. 6 The defendant responds that the Court is not empowered to exercise its
discretion to extend the plaintiff’s time to serve here because an extension would amount to a
substantive change to the tolling statute. Once again, the law is firmly on the defendant’s side.
“Discretionary extensions of time to effect service under CPLR 306-b do not ‘negate or nullify’
the filing and service requirements of CPLR 205(a).” Mira v. Media, 222 A.D.3d 528, 529 (1st
Dep’t 2023), appeal dismissed sub nom. Mira v. Argus Media, 42 N.Y.3d 942 (2024); see also
Pyne v. 20 E. 35 Owners Corp., 267 A.D.2d 168, 169 (1st Dep’t 1999) (“CPLR 306-b did not
negate or nullify the 1992 amendment to CPLR 205(a) requiring service within the six-month
period.”). In short, the Court may extend the time to serve under CPLR § 306-b in the interest of
justice, but that discretionary authority does not allow the Court to extend the six-month service
deadline set by the legislature in CPLR § 205(a). 7
6

The plaintiff appeals to the Court’s discretion under F.R.C.P. 4(m), but New York law — not federal
law — controls this question. See Diffley v. Allied Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990)
(applying the tolling provision of CPLR § 205(a) because “[i]n diversity cases, ‘state statutes of
limitations govern the timeliness of state law claims,’ and state law ‘determines the related questions of
what events serve to commence an action and to toll the statute of limitations’”).

7

The plaintiff also argues that his claims are timely because service was made within the 120-day period
provided by CPLR 306-b. But this position confuses the issues. The defendant does not argue that
service was untimely or otherwise deficient as a general matter. Instead, the question is whether the

9

Even if the Court had such discretionary authority in this case, it is not obvious to the
Court that exercising it would be in the interest of justice. In general, courts are reluctant to
interpret § 205(a) in a manner that “would undermine the purpose of the statute of limitations
doctrine, which is ‘to serve the objectives of finality, certainty and predictability’” Ray v. Ray,
No. 20-CV-6720, 2021 WL 1164655, at *6 (S.D.N.Y. Mar. 25, 2021), aff’d, 22 F.4th 69 (2d Cir.
2021) (quoting Ajdler v. Province of Mendoza, 33 N.Y.3d 120, 130 n.6 (2019)). Because the
Court could not extend the time for service without reviving claims that would otherwise be
time-barred, the Court would be conducting its own balance of the relative purposes of the
tolling provision, on the one hand, and the statute of limitations doctrine, on the other.
The Court is mindful of the consequences of its decision, which will deprive the plaintiff
of an adjudication on the merits, which he deserved. As the plaintiff notes, the claims in this
action survived a previous motion to dismiss for failure to state a claim. 8 Moreover, the plaintiff
timely commenced the action by filing the complaint and the defendant has been on notice of
these claims for nearly five years.
At the same time, the plaintiff had every opportunity to take advantage of the saving
statute. While the plaintiff’s counsel claims he was “misled by the process server,” he could
have confirmed that service had been effected at any time before the six-month period expired.
plaintiff served the defendant consistent with the statutory requirements of CPLR § 205(a) — that is,
whether service was effected within six months of the termination of the previous action. Because the
plaintiff did not comply with the statute, he cannot avail himself of the tolling benefit, even though
service would have been timely and sufficient under CPLR § 306-b.
8

The plaintiff also insists that the law of the case doctrine prohibits dismissal because Judge Brodie
previously denied a motion to dismiss on these claims. The plaintiff is mistaken. “Law-of-the-case
rules have developed to maintain consistency and avoid reconsideration of matters once decided during
the course of a single continuing lawsuit. They do not apply between separate actions, even if they are
related.” Wright & Miller, 18B Fed. Prac. & Proc. Juris. § 4478 (3d ed.). Although this case is related
to the previous federal action, it is not the same case. More fundamentally, “[l]aw of the case does not
reach a matter that was not decided.” Id. No one raised CPLR § 205(a), because, as the parties agree,
the claims in the action before Judge Brodie were timely.

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Instead, he waited until May 2 — more than six months after termination of the previous suit —
to contact the process server he hired. Under the plain text of the statute, service on May 2 was
simply too late.
CONCLUSION
For these reasons, the defendant’s motion to dismiss is granted. The plaintiff’s motion to
consolidate is denied as moot.

SO ORDERED.
s/Ann M. Donnelly
___________________________
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
March 6, 2025

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