Obot v. Navient

Filing 19

DECISION AND ORDER: For the reasons outlined in the attached Decision and Order, the Defendant's motion to dismiss 9 is granted. The Clerk of the Court shall take all steps necessary to close this case. A copy of this entry has been mailed to Otu A. Obot, 502 Windermere Blvd., Amherst, NY 14226. SO ORDERED. Signed by Hon. Richard J. Arcara on 1/21/17. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
OTU A. OBOT,
Plaintiff,
16-CV-102-A
DECISION AND ORDER

v.
NAVIENT,
Defendant.
__________________________________

This case is before the Court on the Defendant’s motion to dismiss for insufficient
service pursuant to Federal Rule of Civil Procedure 12(b)(5). For the reasons stated
below, the motion is granted.
BACKGROUND
On February 5, 2016, the Plaintiff filed a pro se complaint seeking equitable relief
and damages based on his allegation that the Defendant “and the agency pursuant to a
letter issued by the Department of the Treasury, Bureau of Fiscal Service . . .
institute[ed] a forced and premature seizure and reduction of our Social Security
Benefits without any formal due process hearing and a final resolution of any and all
ongoing and outstanding litigation as required pursuant to Federal Law 31 U.S.C. §
3716.”

Complaint ¶ 1.

The Plaintiff also alleges violations of several consumer

protection laws. Id. ¶¶ 9-10.
Two months later, the Plaintiff filed a certificate of service stating that he had
served the complaint and summons on the Clerk of this Court, as well as “Navient, P.O.
Box 9460, PCA MC E2142, Wilkes-Barre, P.A. 18773-9460.” Docket No. 2 at 1. The
certificate stated that “Navient has refused to provide the name of a person designated
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to receive process. Navient has also refused to provide a street address for service of
process.” Id. (emphasis omitted). One month after he filed his first certificate of service,
the Plaintiff filed a second certificate. See Docket No. 3. The second certificate stated
that the Plaintiff had served the summons and complaint on the Clerk of the Court; the
same P.O. box address in Wilkes-Barre, Pennsylvania; and an attorney in Amherst,
New York. 1
Nearly three months after he filed his second certificate of service, the Plaintiff
requested that the Clerk enter default pursuant to Federal Rule of Civil Procedure 55(a).
The Clerk refused to do so, noting that the Plaintiff had not effected proper service.
The Plaintiff then sent two letters to the Court. The first letter again stated that
the Plaintiff had served the complaint on an attorney in Amherst, New York, who, the
Plaintiff claimed, “had informed us that SallyMae Inc. had changed its name to Navient.”
Docket No. 5 at 1. The Plaintiff argued that “[a] change of name should not affect
service. Unless there are other changes that we have not been made aware of, there is
nothing improper about service on the attorney of record.” Id. The Plaintiff’s second
letter claimed that he had now effected proper service. Attached to that letter was a
certificate stating that the Plaintiff had once again served the summons and complaint
on the Clerk of the Court; on the “U.S. Department of Education c/o NAVIENT,” at the
same Wilkes-Barre address to which the Plaintiff had previously mailed the complaint;
and the United States Attorney for the Western District of New York.
The Court then entered an order directing the Clerk to not enter default, “because
the Plaintiff has not shown that he has properly served the Defendant.” Docket No. 7.

1

The attorney to whom the Plaintiff served the complaint is the same attorney who filed the motion to
dismiss that is now before the Court.

2

The Court noted that the case had “been pending for nearly six months with little
progress and multiple attempts at service.” Id. Nonetheless, because of the Plaintiff’s
pro se status, “and even though the deadline for proper service ended months ago,
pursuant to Federal Rule of Civil Procedure 4(m), the Court sua sponte extend[ed] the
time for Plaintiff to correctly serve the Defendant by 28 days from the date of [the
Court’s] Order.”
Ten days later, the Plaintiff filed yet another certificate of service. That certificate
stated that the Plaintiff had served the summons and complaint on the “US Department
of Education C/O NAVIENT” at the Wilkes-Barre address; the “The Civil Process Clerk”
of the U.S. Attorney for the Western District of New York; the U.S. Department of
Education, in Washington, D.C.; and the U.S. Attorney General. Docket No. 8.
The Defendant then filed the motion to dismiss for improper service that is now
before the Court. 2
DISCUSSION
“[W]hen a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the
burden of proving adequate service.” Dickerson v. Napolitano, 604 F.3d 732, 752 (2d
Cir. 2010) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)). In
this case, the Plaintiff must therefore show that he has properly served the Defendant—
a corporation—in accordance with Rule 4(h), which governs service on corporate
defendants. Rule 4(h) permits service in one of two ways: service is proper (1) if it is
made in “the manner prescribed by [state law] for serving an individual,” or (2) if the
plaintiff has “deliver[ed] a copy of the summons and of the complaint to an officer, a

2

In its motion, Navient appears as “Navient Solutions, Inc.” and asserts that it has been misidentified in
the complaint. This issue is immaterial to the Court’s resolution of the Defendant’s motion to dismiss.

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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)(1)(A)-(B). As discussed below, the
Plaintiff has not met his burden of showing that service was proper under either of the
two methods of service permitted by Rule 4(h).
A. Service was not proper under New York or Pennsylvania law.
First, the Plaintiff has not shown that he served the Defendant in a manner
authorized by New York law, i.e., the law of the “state where [this Court] is located.”
Fed. R. Civ. P. 4(e)(1). New York law allows a corporation to be served by “[p]ersonal
service . . . 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.”
N.Y. C.P.L.R. § 311(a)(1). The Plaintiff, however, has not shown that he has done so.
Likewise, the Plaintiff has not shown that he served the Defendant in any other way
authorized by New York law, such as by serving the summons and complaint on the
Defendant’s registered agent or on the New York Secretary of State. See N.Y. C.P.L.R.
§§ 306, 312-a. See also Obot v. Citibank South Dakota, N.A., 347 F. App’x 658, 659-60
(2d Cir. 2009) (affirming dismissal for failure to properly serve corporate defendant in
accordance with C.P.L.R. §§ 306, 311, and 312-a). The Plaintiff has therefore not met
his burden of showing that service was proper under New York law.
The Plaintiff has also failed to show that he served the complaint in a manner
authorized by Pennsylvania law, i.e., the law of the “state where service is made.” Fed.
R. Civ. P. 4(e)(1). Pennsylvania Rule of Civil Procedure 424 provides that “[s]ervice of
original process upon a corporation or similar entity shall be made by handing a copy to
. . . an executive officer, partner or trustee of the corporation,” “the manager, clerk or

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other person for the time being in charge of any regular place of business or activity of
the corporation or similar entity,” or “an agent authorized by the corporation or similar
entity in writing to receive service of process for it.” Pa. R. Civ. P. 424(1)-(3) (emphasis
added).

When a plaintiff serves an out-of-state party, Pennsylvania Rules of Civil

Procedure 403 and 404 allow service to be made by mail, but to do so, the plaintiff must
mail “a copy of the process . . . to the defendant by any form of mail requiring a receipt
signed by the defendant or his authorized agent.” Pa. R. Civ. P. 403. See also Vaughn
v. TALX Corp., Civil Action No. 14-7110, 2015 WL 3871477, at *2 (E.D. Pa. June 23,
2015) (discussing manner in which corporate defendant may be served under
Pennsylvania law and how service by mail may be effected). These “rules . . . must be
strictly followed,” Cintas Corp. v. Lee’s Cleaning Svcs., Inc., 700 A.2d 915, 917 (Pa.
1997), and because the Plaintiff has not shown that he has followed them to any
degree, he has not met his burden of proving proper service under Federal Rule of Civil
Procedure 4(e)(1).
B. Service was not proper under Rule 4(h)(1)(B).
The Plaintiff’s service attempts also do not comply with the second way in which
the Federal Rules of Civil Procedure authorize service on a corporate defendant. Rule
4(h)(1)(B), as noted, authorizes service on a corporation by “delivering a copy of the
summons 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.” But Rule
4(h)(1)(B) does not authorize service by mail. See Jordan v. Forfeiture Support Ass’c,
928 F. Supp. 2d 588, 595 (E.D.N.Y. 2013) (“[N]othing in Rule 4(h)(1)(B) provides that
service by certified mail constitutes adequate service of process.”) (quotation marks

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omitted). That, of course, is the only way the Plaintiff claims he served the Defendant.
Thus, the Plaintiff has not met his burden of showing that he properly served the
Defendant in a manner authorized by Rule 4(h).
C. Service was not otherwise proper.
The Plaintiff’s service on the U.S. Attorney General, the U.S. Attorney for the
Western District of New York, and the U.S. Department of Education suggests that he
believes service in this case to be governed by Rule 4(i). Rule 4(i), however, governs
service on the United States of America, federal agencies, federal officers, and federal
employees. The Defendant is none of those entities or persons. It appears that the
Plaintiff’s mistaken belief arises from the fact that, as he alleges, the Defendant
provides services on behalf of either the Department of the Treasury or the Department
of Education. See also Docket No. 9-1 (Def’s Mot. to Dismiss) at 4 (stating that the
Defendant “is a non-governmental domestic corporation that contracts with the
Department of Education to service federal student loans”). But if the Plaintiff seeks to
sue Navient—a non-governmental entity—he must comply with Rule 4(h), even if he
seeks to sue Navient for actions it undertook in the course of a contractual relationship
with a federal agency. The Plaintiff has not done so, and for that reason, the Court
grants the Defendant’s motion to dismiss.
The Plaintiff makes several other arguments in opposition to the Defendant’s
motion to dismiss.

Specifically, he argues that the Defendant intentionally avoided

service “by its clandestine disposition and failure to openly, transparently and dutifully
disclose its lawful corporate name and address” until filing its motion to dismiss; he

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argues that the Defendant’s motion to dismiss was untimely; 3 he argues that the
Defendant failed to file a corporate disclosure statement; 4 and he argues that the
Defendant failed to respond to a purported Freedom of Information Act request the
Plaintiff filed in this case (Docket No. 11). None of these arguments, however, provides
a basis for denying the Defendant’s motion to dismiss.
CONCLUSION
For the reasons stated above, the Defendant’s motion to dismiss (Docket No. 9)
is granted. The Clerk of the Court shall take all steps necessary to close this case.
SO ORDERED.

Dated: January 21, 2017
Buffalo, New York

___s/Richard J. Arcara__________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE

3

The Defendant filed its motion to dismiss within the time permitted by the Court’s August 19, 2016
Order. See Docket No. 7.

4

The Defendant has filed a corporate disclosure statement. See Docket No. 18.

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