Sauer v. Town of Cornwall et al

Filing 25

OPINION & ORDER re: 16 MOTION to Dismiss filed by Town of Cornwall, Todd Hazard. For the foregoing reasons, Defendants' Motion is GRANTED, solely on grounds that they are presently improperly before this Court, and grants Plain tiff a 60-day extension to effect proper service. The Complaint is not presently dismissed. Instead, Plaintiff shall have until November 8, 2021 to effect proper service on each named Defendant or obtain and file waivers of service. Defendants may th en answer the Complaint or refile their submissions should they so choose. Should Plaintiff fail to timely comply with this Opinion and Order the action, the Court may dismiss claims pursuant to Fed. R. Civ. P. 12(b)(5), which may result in claims being time-barred. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 16. SO ORDERED. (Service due by 11/8/2021.) (Signed by Judge Nelson Stephen Roman on 9/7/2021) (mml)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARTIN J. SAUER,

9/7/2021
Plaintiff.

-against-

No. 20-cv-4881 (NSR)
OPINION & ORDER

TOWN OF CORNWALL, and TODD HAZARD,
Town of Cornwall Police Chief,
Defendants.
NELSON S. ROMÁN, United States District Judge:
Plaintiff, Martin Sauer (“Plaintiff” or “Sauer”), is a 74-year-old partially blind veteran that
commenced this action under 42 U.S.C. § 1983 (“Section 1983”) against Defendants Town of
Cornwall (“Town”) and Police Chief Todd Hazard (“Chief Hazard”) (collectively, “Defendants”)
for various constitutional violations relating to Chief Hazard’s arrest of Plaintiff for giving away
sweet corn without a peddler’s permit issued by the Town (even though he had a State-issued
peddler’s license). (Complaint (“Compl.”) (ECF No. 1-1).) Defendants move to dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(5) arguing, among other things, that
Plaintiff did not properly serve Defendants. For the following reasons, Defendants’ motion is
GRANTED, solely on the grounds of improper service, Plaintiff is granted an extension of 60 days
to cure his service defects or obtain a waiver of service, and Plaintiff’s claims are not dismissed
pursuant to this Opinion.
BACKGROUND
The following facts are derived from the Complaint or matters of which the Court may take
judicial notice, are taken as true, and constructed in the light most favorable to Plaintiff for the

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purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Nicosia v. Amazon.com,
Inc., 834 F.3d 220, 230 (2d Cir. 2016).
Plaintiff is partially blind 74-year old veteran of the United States Armed Forces that sold
his sweet corn from a truck along the side of Route 32 in the Town of Cornwall for over twenty
years (approximately between 1992 and 2018). (See Compl. ¶¶ 9-10.) Plaintiff sold his sweet
corn pursuant to: (1) a peddler’s license issued by the State of New York in 1992 that conferred a
lifetime right to peddle one’s sweet corn (the “Peddler’s License”), and (2) annual peddler’s
permits issued by the Town Clerk for the Town of Cornwall between 2011 and 2017 (“Peddler’s
Permits”). (Id. ¶¶ 11-15.) In 2018, the Town denied Plaintiff’s applications for a Peddler’s Permit
based, in part, upon Chief Hazard’s assessment that the sale of sweet corn on the side of the road
was dangerous to the community. (Id. ¶¶ 16-17.) After his permit was denied, Plaintiff decided
to “park his truck along Route 32 in the Town of Cornwall and give away his sweet corn” on the
theory that you don’t need a peddler’s permit to give away your corn. (Id. ¶¶ 18-21.) On July 21,
2018, Chief Hazard arrested Plaintiff for unlicensed peddling of sweet corn in violation of Section
111-4 of the Town Code. The arrest kicked off a legal battle in state court that is not immediately
relevant to the resolution of this motion. (Id. ¶¶ 25-55.)
After initiating this action, on July 7, 2020, Plaintiff mailed a bundle of documents to the
Town Clerk and Chief Hazard containing, among other things, copies of the complaint and a blank
form that could be completed by Defendants to waive service. (See ECF No. 22-2.) On July 9,
2020, Plaintiff’s counsel also sent Defendants’ counsel a copy of the complaint. (ECF No. 22-3.)
Later, on July 26, 2020, Defendants’ counsel requested an extension of 30-days to answer or
respond to the complaint and did not, at that time, raise improper service as an issue. (Id.) In any

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event, there is no proof of service on the docket and Plaintiff concedes that “formal service was
never effected.” (Pl’s Opp. at 5.)
LEGAL STANDARDS
Rule 12(b)(5)
Fed. R. Civ. P. § 12(b)(5) provides that a complaint may be dismissed for insufficient
service of process. When considering a Rule 12(b)(5) motion, 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). Plaintiff bears the burden of establishing that
service was sufficient. Khan v. Khan, 360 Fed. App’x. 202, 203 (2d Cir. 2010) (citing Burda
Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)) (internal citation omitted). On a motion
to dismiss, Courts should consider the issue of jurisdiction first, because dismissal for lack of
jurisdiction renders all other claims moot. Darden, 191 F. Supp. 2d at 386 (citing Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999); Calero v. Immigration and Naturalization Service,
957 F.2d 50 (2d Cir. 1992); Da Silva v. Kinsho Int’l Corp., 229 F.3d 358 (2d Cir. 2000)).
Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court must determine whether the
complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The Court must take all material factual allegations as true and draw
reasonable inferences in the non-moving party’s favor, but the Court is “not bound to accept as
true a legal conclusion couched as a factual allegation,” or to credit “mere conclusory statements”
or “[t]hreadbare recitals of the elements of a cause of action.” Id. (quoting Twombly, 550 U.S. at
555). A claim is facially plausible when the factual content pleaded allows a court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
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Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the complaint
or incorporated in the complaint by reference, and to matters of which judicial notice may be
taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation
marks and citation omitted).
DISCUSSION
Defendants seek dismissal of Plaintiff’s Complaint on, inter alia, the grounds of improper
service. Plaintiff concedes that “formal service was never effected” but asks this Court to either
deem service effective or grant Plaintiff an extension to effect service on Defendants. The Court
concludes that it is proper and appropriate to exercise its discretion to grant Plaintiff an extension
of 60 days to properly effectuate service on Defendants. Having concluded that proper service has
not been made upon Defendants and that this Court therefore does not have jurisdiction over
Defendants, the Court does not reach the merits of Defendants’ arguments for dismissal pursuant
to Fed. R. Civ. P. 12(b)(6).
I.

Whether Plaintiff Established Effective Service of Process on Defendants
Rule 4(e) governs appropriate service of process with respects to service on individuals

and dictates that “an individual within a judicial district of the United States” may be served by:
(1) following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the 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.
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Fed. R. Civ. P. 4(e).
Rule 4(j)(2) governs appropriate service of process with respect to state or local
government entities and dictates that “[a] state, a municipal corporation, or any other state-created
governmental organization that is subject to suit must be served by: (A) delivering a copy of the
summons and the complaint to its chief executive officer; or (B) serving a copy of each in the
manner prescribed by that state’s law for serving a summons or like process on such a defendant.”
Fed. R. Civ. P. 4(j)(2).
Further, federal courts ordinarily follow state law in determining the bounds of their
jurisdiction over persons. See Fed. Rule Civ. P. 4(k)(1)(A) (service of process is effective to
establish personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of
general jurisdiction in the state where the district court is located”). Daimler AG v. Bauman, 571
U.S. 117, 125 (2014). In New York, therefore, personal jurisdiction will be proper where service
is effective pursuant to New York Civil Practice Law (“CPLR”) or related rules.
CPLR Section 308 provides that personal service upon an individual may be made by (1)
“delivering the summons within the state to the person to be served;” or (2) “by delivering the
summons within the state to a person of suitable age and discretion at the actual place of business,
dwelling place or usual place of abode 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 the person to be served . . . [along with proof of service filed on the docket];”
or (3) “by delivering the summons within the state to the agent for service of the person to be
served as designated under rule 318”. CPLR § 318 (1)-(3).
CPLR Section 311 provides that personal service upon a corporation or governmental
subdivision shall be made by delivering the summons “upon any domestic or foreign corporation,

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to 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.” CPLR. § 311.
The Court need not exhaustively analyze whether Plaintiff formally complied with any of
the aforementioned rules because Plaintiff concedes that “formal service was never effected.”
(Pl’s Opp. at 5.) As it is Plaintiff’s burden to establish that service was sufficient, this admission
is dispositive.
Nonetheless, Plaintiff argues that this Court should “deem” service proper because
Defendants were indisputably on notice as to the pendency of this action and engaged in
gamesmanship by not executing a waiver of service. Plaintiff states that the Court can infer that
Defendants were on notice about the action because: (1) “on July 7, 2020, a complete Notice of
Lawsuit, Complaint, two copies of Waiver of Service of Summons, Rules of Practice of Honorable
Nelson A. Roman, and USDC/SDNY Electronic Case Filing Rules and Instructions were mailed
to the Town Clerk and to Hazard” (Pl’s Opp. at 3); (2) on July 9, 2020 “a copy of the recently filed
complaint was emailed to Defendants’ counsel, Ms. Lee” (id.); and (3) on July 26, 2020, Plaintiff
received a request for an extension of time to answer or respond to the Complaint resulting in a
stipulation filed on July 29, 2020 (ECF No. 11).
The Court does not believe that what occurred—basically a misunderstanding between
counsel as to whether service was waived in negotiating an extension to responsive pleadings—
qualifies as gamesmanship by Defendants and, regardless, Plaintiff identifies no authority that
suggests that this Court can or should deem service effected without technical compliance with
state or federal rules governing service of process. Accordingly, the Court finds that neither the
Town nor Chief Hazard were effectively served and declines to “deem” the mailings identified by
Plaintiff as effective.

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II.

Whether Plaintiff Should be Granted an Extension to Serve Process
Although the Court declines Plaintiff’s invitation to deem his attempted service of process

effective, the Court nevertheless elects to exercise its discretion pursuant to Federal Rule of Civil
Procedure 4(m) to grant Plaintiff an extension of time to effectuate proper service. Pursuant to
Federal Rule of Civil Procedure 4(m), a court must grant a reasonable extension of time to serve
if Plaintiff shows “good cause” for the failure to effect timely service. Fed. R. Civ. P. 4(m). Rule
4(m) additionally affords district courts broad discretion to grant extensions of time to serve even
absent “good cause.” Mares v. United States, 627 F. App’x. 21, 23 (2d Cir. 2015) (summ. order).
In exercising such discretion, courts typically consider whether a plaintiff made diligent efforts to
effect service as well as:
(1) whether the applicable statute of limitations would bar the refiled action; (2)
whether the defendant had actual notice of the claims asserted in the complaint; (3)
whether the defendant had attempted to conceal the defect in service; and (4)
whether the defendant would be prejudiced by the granting of plaintiff’s request for
relief from the provision.
Castro v. City of New York, No. 05-CV-593 (LAK) (MHD), 2007 WL 3071857, at *7 (S.D.N.Y.
Oct. 10, 2007) (internal quotation marks omitted), report and recommendation adopted, 2007 WL
3224748 (S.D.N.Y. Nov. 1, 2007).
After careful consideration of all relevant factors, the Court finds that an extension of time
to effectuate service on Defendant is warranted.
First, Plaintiff engaged in diligent efforts to obtain a waiver of service. Seeing as the
parties have been in litigation in state court for several years and were in communications
regarding a settlement, it was appropriate for Plaintiff to seek a waiver of service to reduce
unnecessary costs in this matter. To that end, and with the goal of giving actual notice to
Defendants and their counsel, Plaintiff’s counsel mailed copies of the relevant documents to
Defendants and their counsel. It is true that Plaintiff’s counsel failed to follow through on
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obtaining a completed waiver of service from Defendants’ counsel. Nonetheless, this oversight
seems to stem, at least in part, from the request by Defendants’ counsel for an extension to their
time to respond to the complaint. There would be no need for an extension if Defendants were not
served because responsive pleading deadlines are triggered by service of process, not receipt of
ineffective service. In light of this, the Court concludes that Plaintiff’s failure to follow up
regarding the execution of a waiver of service did not suggest it failed to be diligent in seeking a
waiver of service.
Second, statute of limitations considerations weigh in favor of granting Plaintiff an
extension of time to effectuate service. By Plaintiff’s admission, the statute of limitations expired
for certain of his claims on July 21, 2021. Accordingly, if this Court were to dismiss Plaintiff’s
action for insufficient service of process, Plaintiff would therefore be barred from re-asserting
those claims. In such instances, dismissal under Rule 4(m) would, in effect, become a dismissal
with prejudice. For this reason, “[c]ourts have consistently considered the fact that the statute of
limitations has run on a plaintiff’s claim as a factor favoring the plaintiff in a Rule 4(m) analysis.”
Songhorian v. Lee, No. 11-CV-36 (CM), 2012 WL 6043283, at *4 (S.D.N.Y. Dec. 3, 2012)
(internal quotation marks omitted) (quoting AIG Managed Mkt. Neutral Fund v. Askin Capital
Mgmt., 197 F.R.D. 104, 109 (S.D.N. Y 2000)). Otherwise, “dismissal under these circumstances
would extinguish potentially meritorious claims without there being an opportunity to have them
adjudicated on the merits.” Id. (internal quotation marks omitted) (quoting AIG Managed Mkt.
Neutral Fund, 197 F.R.D. at 109-10).
This Court is particularly hesitant to effectively dismiss an action with prejudice for
insufficient service of process where, as here, the defendant undoubtedly had actual notice of the
lawsuit. “[T]he core function of service is to supply notice in a manner and at a time that afford

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the defendant a fair opportunity to answer the complaint and present defenses and objections.”
Garcia v. City of New York, No. 15-CV-7470 (ER), 2017 WL 1169640, at *6 (S.D.N.Y. Mar. 28,
2017) (internal quotation marks omitted). As discussed above, Defendants were mailed copies of
the motion and had sufficient notice to engage in motion practice. Courts in this Circuit have been
reluctant to dismiss entire actions for insufficient service where the fundamental purpose of Rule
4 has been so clearly satisfied. See Jones v. Westchester Cty., 182 F. Supp. 3d 134, 145-46
(S.D.N.Y. 2016) (collecting cases). This factor, thus, also weighs in favor of granting Plaintiff an
extension of time.
Finally, Defendants will not be unduly prejudiced by this extension. Indeed, courts in this
district have recognized that where, as here, a defendant received actual notice and had the
opportunity to address the merits of the action, prejudice is minimal. See, e.g., In re Teligent
Servs., Inc., 324 B.R. 467, 474 (Bankr. S.D.N.Y. 2005), aff’d, 372 B.R. 594 (S.D.N.Y. 2007)
(recognizing that a finding that defendants had “[a]ctual notice of an action militates against a
finding of prejudice”) (citing AIG Managed Mkt., 197 F.R.D 111).
Accordingly, the Court grants Plaintiff an extension of 60 days—i.e., until November 8,
2021—to effect proper service of process on Defendants.
III.

Remaining Arguments
As the Court mentioned earlier, Defendants also moved to dismiss on a number of grounds

under Fed. Rule Civ. P. 12(b)(6). The Court cannot address these arguments at this juncture, since
the court finds it has no personal jurisdiction. Porco v. Phoenix Bldg. Corp., No. 18 CV 5938
(NSR), 2019 WL 2210659, at *3 (S.D.N.Y. May 21, 2019) (“A court must dismiss an action
against any defendant over whom it lacks personal jurisdiction.”); Fed. R. Civ. P. 4(m). Therefore,
should Plaintiff properly serve Defendants, and should Defendants re-file their Motion to Dismiss
at a subsequent date, the Court will address any ripe issues at future junctures.
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CONCLUSION
For the foregoing reasons, Defendants’ Motion is GRANTED, solely on grounds that they
are presently improperly before this Court, and grants Plaintiff a 60-day extension to effect proper
service. The Complaint is not presently dismissed. Instead, Plaintiff shall have until November
8, 2021 to effect proper service on each named Defendant or obtain and file waivers of service.
Defendants may then answer the Complaint or refile their submissions should they so choose.
Should Plaintiff fail to timely comply with this Opinion and Order the action, the Court may
dismiss claims pursuant to Fed. R. Civ. P. 12(b)(5), which may result in claims being time-barred.
The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 16.

Dated:

September 7, 2021
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

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