Frezzell v. New York State Department of Labor et al

Filing 51

MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt No. 36) to dismiss is DENIED; and it is further ORDERED, that the Clerk of the Court shall reissue summonses for Defendants Sara Harms, Justin Heinbuch, Heather Romano, Margaret Sheehan-Nol an, John Triller, Marty Selleck, Symone Wango, and Robert Young and provide them to Plaintiff so that he may serve these Defendants with a summons and a copy of the Amended Complaint in accordance with Rule 4 of the Federal Rules of Civil Procedure; and it is further ORDERED, that Plaintiff shall have forty-five (45) days from the date of this Memorandum-Decision and Order to serve Defendants. Signed by Senior Judge Lawrence E. Kahn on February 24, 2016.***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAMES R. FREZZELL,
Plaintiff,
-against-

1:14-cv-0729 (LEK/ATB)

NEW YORK STATE DEPARTMENT
OF LABOR, et al.,
Defendants.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
Plaintiff James Frezzell (“Plaintiff”) commenced this employment discrimination action

against his employer, New York State Departmant of Labor (“DOL”), as well as current and former
DOL employees Sara Harms, Justin Heinbuch,1 Heather Romano, Margaret Sheehan-Nolan, John
Triller, Marty Selleck, Symone Wango, and Robert Young (collectively, “Defendants”). Dkt. No. 1
(“Complaint”). Defendants consented to allow Plaintiff to file an amended complaint. Dkt. Nos. 24
(“Text Order”); 25-1 (“Amended Complaint”). Presently before the Court is a Motion to dismiss
filed by the individual Defendants on the basis of insufficient service of process. Dkt. Nos. 36
(“Motion”); 36-10 (“Memorandum”). Plaintiff filed documents in opposition on July 13, 2015, July
14, 2015, and August 20, 2015. Dkt. Nos. 37, 39, 42. Defendants filed a Reply. Dkt. No. 45. For
the following reasons, Defendants’ Motion is denied.

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In a text order dated September 16, 2014, the Court granted Plaintiff’s request to amend the
Complaint to correct the name of Defendant “Justin Heinbuck,” who was originally named as “John
Hemlick.” Dkt. No. 13. However, according to Defendants’ Motion, it appears that the correct
spelling is “Justin Heinbuch.” See Dkt. 36-3 (“Heinbuch Declaration”).

II.

BACKGROUND
Because the Motion presently before the Court concerns the adequacy of service of process,

the Court will summarize only those facts necessary for the disposition of the present Motion.
Briefly stated, Plaintiff is an African-American male who was previously employed as a Local
Veterans Employee Representative by the DOL. Am. Compl. ¶¶ 4, 7. Plaintiff alleges that while
employed at DOL, he was repeatedly subjected to racial slurs, derogatory comments, and verbal
abuse based on his race. Id. ¶ 17. Plaintiff brings claims pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the New York State
Human Rights Law (“NYSHRL”), N.Y. EXEC. LAW § 290, et seq. Id. ¶ 1.
A. Procedural History
Plaintiff’s original Complaint was filed pro se on June 17, 2014. Compl. Defendants filed a
Motion to dismiss on October 2, 2014. Dkt. No. 16. On October 27, 2014, attorney Michael
Macomber (“Macomber”) filed a Notice of appearance on behalf of Plaintiff, and Plaintiff filed a
Motion to amend the Complaint soon after. Dkt. Nos. 17, 20. On November 14, 2014, the Court
issued an order granting Defendants’ request to withdraw the Motion to dismiss and to consent to
the filing of the Amended Complaint. Dkt. No. 24.
On December 31, 2013, the individual Defendants filed an Answer to the Amended
Complaint, asserting that they were not properly served. Dkt. No. 26 (“Answer”). Macomber filed
a request to withdraw as Plaintiff’s counsel, which was granted on January 28, 2015 by United
States Magistrate Judge Andrew Baxter. Dkt. Nos. 28; 29. Judge Baxter stayed the case pending
the appearance of substitute counsel and instructed Plaintiff to file a status report with the Court.
Dkt. No. 29. Plaintiff was unable to find counsel to represent him, and the Court lifted the stay on

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June 3, 2015. Dkt. No. 35. On July 7, 2015, Defendants filed the Motion to dismiss presently
pending before the Court. Mot. Plaintiff responded to the Motion by filing three status reports with
the Court regarding his inability to obtain substitute counsel as well as his belief that Defendants
were properly served. See Dkt. Nos. 37, 38, 39, 40.
B. Service
The Court issued Summonses to DOL on June 17, 2014 and to the individual Defendants on
June 18, 2014.2 Dkt. Nos. 2; 5. Plaintiff hired a process server, The Servinator, Inc., to serve
Defendants at the DOL office building. Dkt. No. 37 at 1. On June 25, 2014, DOL employee Mary
McManus (“McManus”) accepted service of the Summons and Complaint on behalf of DOL in the
lobby of the DOL office building. Dkt. 36-1 (“McManus Declaration”) ¶ 6. McManus contends
that she did not know that the papers she received along with the Summons and Complaint directed
to DOL also contained Summonses directed to the individual Defendants. Id. ¶ 9. McManus is
authorized to accept service on behalf of DOL; however, she contends that she is not authorized to
accept service on behalf of individual employees of DOL. Id. ¶¶ 4, 5. Plaintiff has not filed proof
of service with regard to any of the Defendants.
In support of their Motion, Defendants have attached affidavits from each individual
Defendant, stating that they were not personally serviced with the Summons and Complaint, they
did not receive service of these documents by mail, and they did not authorize anyone at DOL to
accept service on their behalf. See Dkt. Nos. 36-2 to -9.

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Due to the misspelling of Heinbuch’s name, a new Summons with the correct spelling was
issued on October 28, 2014. Dkt. No. 37 at 1. Plaintiff received an affidavit of non-service on
October 29, 2014, stating that Elina Matot, a senior attorney at DOL, refused to accept service on
the basis that the agency will not accept documents addressed to an individual employee in their
individual capacity. Id. at 3.
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III.

LEGAL STANDARD
On a motion to dismiss pursuant to Rule 12(b)(5) for deficient service of process, “the

plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x
202, 203 (2d Cir. 2010). The plaintiff must meet this burden by making a prima facie case of proper
service “through specific factual allegations and any supporting materials.” Kwon v. Yun, No. 05cv-1142, 2006 WL 416375, at *2 (S.D.N.Y. Feb. 21, 2006). “On review of a motion challenging
service of process, the court considers the parties’ pleadings and affidavits in the light most
favorable to the non-moving party.” Gross Found., Inc. v. Goldner, No. 12 Civ. 1496, 2012 WL
6021441, at *2 (S.D.N.Y. Dec. 4, 2012) (quoting Krape v. PDK Labs Inc., 194 F.R.D. 82, 84
(S.D.N.Y. 1999)). In determining whether service was proper, “the court ‘must look to matters
outside the complaint’ to determine what steps, if any, the plaintiff took to effect service.”
Flemming v. Moulton, No. 13-CV-1324, 2015 WL 5147035, at *4 (N.D.N.Y. Sept. 1, 2015)
(quoting C3 Media & Mktg. Grp., LLC v. Firstgate Internet, Inc., 419 F. Supp. 2d 419, 427
(S.D.N.Y. 2005)). “Conclusory statements alone are not sufficient to overcome a defendant’s sworn
affidavit that service was improper.” Western Sur. Co. v. Bykev Int’l Inc., No. 14-cv-9673, 2015
WL 5146112, at *2 (S.D.N.Y. Sept. 1, 2015).
Where service is deemed to have been insufficient, “the Court has discretion to dismiss the
action, but dismissal is not mandatory.” Id. (quoting Darden v. DaimlerChrysler N. Am. Holding
Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002)); see also Flemming, 2015 WL 5147035, at *3, *6
(finding that when defect was easily curable and defendants would suffer minimal prejudice from
allowing plaintiff to cure, plaintiff was merely ordered to properly serve defendants within forty-five
days); Macaluso v. N.Y. State Dep’t of Envtl. Conservation, 115 F.R.D. 16, 20 (E.D.N.Y. 1986)

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(retaining case and allowing plaintiff twenty days to properly serve defendants because “there is a
reasonable prospect that plaintiff[s] ultimately will be able to serve defendants properly” (alteration
in original)). If a complaint is dismissed, it is typically without prejudice absent unusual
circumstances. Blasio v. N.Y. State Dep’t of Corr. Servs., No. 04-CV-653S, 2005 WL 2133601, at
*5 (W.D.N.Y. Aug. 31, 2005).
It is well established that pro se plaintiffs are not excused from complying with procedural
rules. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those
who proceed without counsel.”). However, a court is expected to “take appropriate measures to
permit the adjudication of pro se claims on the merits, rather than to order their dismissal on
technical grounds.” Donald v. Cook Cty. Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996); accord
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 n.6 (2d Cir. 2006).
IV.

DISCUSSION
Rule 4 of the Federal Rules of Civil Procedure provides that an individual may be served

either by (a) delivering a copy of the summons and complaint to the individual personally; (b)
leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable
age and discretion who resides there; or (c) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process on their behalf. FED. R. CIV. P. 4(e)(2)(A)-(C).
A corporation may be served according to Rule 4(e)(1), or “by delivering a copy of the summon and
of the complaint to an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process . . .” FED. R. CIV. P. 4(h). The rules also allow
for service in accordance with the law of the state where service is made or where the district court

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overseeing the case is located. FED. R. CIV. P. 4(e)(1). New York’s rules for service of process
mirror the federal rule. Western Sur. Co., 2015 WL 5146112, at * 2; see also NEW YORK CIVIL
PRACTICE § 308. Pursuant to Federal Rule of Civil Procedure 4(m), a defendant must be served
within 120 days of the filing of the complaint. FED. R. CIV. P. 4(m).
Defendants contend that Plaintiff failed to effect proper service upon the individual
Defendants, pursuant to Rule 4 of the Federal Rules of Civil Procedure and § 308 of the Civil
Practice Law and Rules of New York. Mem. at 3. Defendants raised this defense in their Answer
on December 31, 2014, thereby putting Plaintiff on notice that he had failed to properly serve the
individual Defendants. Dkt. No. 26 (“Answer”). The Court agrees that Plaintiff has failed to
properly serve the individual Defendants; however, the Court does not agree that dismissal is
warranted. See Flemming, 2015 WL 5147035, at *2 (denying defendant’s motion to dismiss for
insufficient service where it was “clear that Plaintiff has attempted to comply with the service
requirements, that Defendants have actual notice of this action through their receipt of the Summons
and Complaint and that they will suffer little prejudice if the Court permits this action to go
forward”). In the present case, Plaintiff, who is proceeding pro se, has attempted to comply with
Rule 4, and mistakenly believed that the individual Defendants had been properly served based on
McManus’s acceptance of service. The individual Defendants have actual notice of this action
based on their cooperation with Defendants’ Motion, and DOL has been properly served.
Furthermore, the Court is unaware of any prejudice that Defendants will suffer if the Court permits
this action to go forward.
V.

CONCLUSION
Accordingly, it is hereby:

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ORDERED, that Defendants’ Motion (Dkt No. 36) to dismiss is DENIED; and it is further
ORDERED, that the Clerk of the Court shall reissue summonses for Defendants Sara
Harms, Justin Heinbuch, Heather Romano, Margaret Sheehan-Nolan, John Triller, Marty Selleck,
Symone Wango, and Robert Young and provide them to Plaintiff so that he may serve these
Defendants with a summons and a copy of the Amended Complaint in accordance with Rule 4 of
the Federal Rules of Civil Procedure; and it is further
ORDERED, that Plaintiff shall have forty-five (45) days from the date of this
Memorandum-Decision and Order to serve Defendants; and it is further
ORDERED, that the Clerk shall serve a copy of this Memorandum-Decision and Order on
the parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

February 24, 2016
Albany, New York

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