United States District Court, N.D. New York
April 5, 2005.
Bruce Chapman and Handle With Care, Plaintiff,
New York State Division for Youth; New York State Department of Social Services; New York State Office of Children & Family Services; John Johnson, Commissioner of New York State Office of Children and Family Services and former Commissioner of the New York State Division for Youth, in his official and individual capacity; Margaret Davis, former Director of Training for the New York State Division of Youth, and former Director of Training for New York State Office of Children and Family Services, in her official and individual capacity; Patsy Murray, former Associate Training Technician for the New York State Division for Youth, and current position as Trainer for New York State Office of Children and Family Services, in her official and individual capacity; Cornell University; Jeffrey Lehman, President of Cornell University, in his official and individual capacity; Hunter Rawlings III, former President of Cornell University, in his official and individual capacity; New York State College of Human Ecology; Family Life Development Center; Residential Child Care Project; Therapeutic Crisis Intervention; Martha Holden, Project Director of the Residential Child Care Project and Therapeutic Crisis Intervention Trainer and Coordinator, in her official and individual capacity; Michael Nunno, Project Director of the Residential Child Care Project and Therapeutic Crisis Intervention Trainer and Coordinator, in his official and individual capacity; Hillside Children's Center, Dennis Richardson, President and CEO of Hillside Children's Center, in his official and individual capacity; Douglas Bidleman, Employee of Hillside Children's Center and Therapeutic Crisis Intervention Trainer, in his official and individual capacity; John Doe 1 through 99, Defendants.
The opinion of the court was delivered by: RANDOLPH TREECE, Magistrate Judge
Plaintiffs move this Court for an order, pursuant to FED. R.
CIV. P. 4(d)(5), requiring Defendants Martha Holden, Jeffrey
Lehman, Michael Nunno and Hunter Rawlings, III (hereinafter
Cornell Individual Defendants) to pay the cost incurred by
Plaintiffs to effect service upon them and attorney fees for
initiating this Motion. Dkt. No. 86, Aff. of Hilary Adler, Esq.,
dated Feb. 14, 2005 (Adler I); Exhibits A-M; Mem. of Law; see
also Dkt. No. 92, Reply Aff. of Hilary Adler, Esq., dated March
7, 2005 (Adler II), & Reply Mem. of Law. The Cornell Individual
Defendants oppose such an application. Dkt. No. 87, Aff. of
Nelson Roth, Esq., dated Feb. 23, 2005 & Mem. of Law. For the
reasons stated below, the Plaintiffs' Motion is denied.
I. BACKGROUND*fn1 On July 22, 2004, Plaintiffs filed a twenty-one page Complaint,
with ten causes of action stated therein, against state agencies,
state officials, not-for-profit organizations, and individuals.
Dkt. No. 1, Compl. On the same day, the Clerk of the Court issued
summonses for all of the named Defendants. As to the Cornell
Individual Defendants, each were sued in their individual and
"professional" capacities. Adler I at ¶ 4; see also Compl. On
August 6, 2004, Plaintiffs served each Cornell Individual
Defendant by mail with two sets of, inter alia, (1) the Notice
of Lawsuit and a Request of Waiver of Service, (2) Waiver of
Service of Summons and Duty to Avoid Unnecessary Costs of Service
of Summons; and (3) copy of the Complaint. Adler I at ¶ 5. From
the Plaintiffs' perspective, "one set was served on each
defendant individually . . . [and] the second set was served on
each defendant as an employee [of Cornell University].*fn2
Id. In the Plaintiffs' view, two sets were necessary because of
the Individual Defendants' dual capacities. See Adler II at ¶
10; Ex. A. On or about September 2, 2004, Attorney Roth executed
one waiver of service of summons on behalf of each of the Cornell
Individual Defendants. Roth at ¶ 2; Dkt. No. 86, Ex. A (letter
and executed waiver) ("I am returning to you herewith, on behalf
of the defendants ? Lehman, ? Rawlings, ? Holden, [and] ?
Nunno . . . an executed waiver of service of summons. . . .).*fn3
Shortly thereafter, based upon the fact that Attorney Roth
executed only one set of the waivers of service sent to each
Cornell Individual Defendant, rather than two, the parties
exchanged a flurry of correspondence. By a letter dated September 8, 2004, Attorney Adler states that
all of the Defendants are being sued in their personal and
professional capacity and wanted confirmation from Roth that the
waiver applied to "each defendant in each capacity." Dkt. No. 86,
Ex. B. Roth responded with his letter, dated September 9, 2004,
first inquiring why the Plaintiffs named the Cornell Individual
Defendants in both their official and individual capacities, and
yet reiterating that the waiver applied to "each of the
individually named Cornell Defendants." Dkt. No. 86, Ex. C.
Notwithstanding his reiteration, Roth asked for further
clarification or justification why the individual Defendants had
to execute two waivers. Id. ("If you provide some legal
justification . . . I would be willing to consider your request
to do."). Replying immediately, though with some protest, Adler
relented somewhat to Roth's inquiry with a truncated and
repetitive legal commentary that these Defendants were named in
both their individual and professional capacities "because we did
not want anyone proceeding on the misperception that this case
was being pursued against them only in their professional
capacity . . . [and] it is not unreasonable for us to request a
separate waiver for each capacity in which the defendant is being
sued." Dkt. No. 86, Ex. D, Adler's Lt., dated Sept. 10, 2004. On
the same day, Roth, in turn, challenged Adler's legal
justification with a legal analysis of his own:
Your demand far exceeds the provisions of Rule 4 of
the Federal Rules of Civil Procedures. Rule 4(d)
permits you to request that an individual named as a
defendant waive service of a summons. The
individually named Cornell defendants . . . have duly
waived service of the summons. Rule 4(d) requires
nothing more. More specifically, I have found nothing
in the Federal Rules of Civil Procedure that requires
either my clients or me to "enter an appearance" or
to "stipulate" acknowledgment of "proper service."
To the contrary, a waiver under Rule 4(d) dispenses
Dkt. No. 86, Ex. E, Roth's Lt., dated Sept. 10, 2004 (quotations
included within the original).
Four days later, on September 14th, Adler advised Roth that
if they did not acknowledge proper service upon them in their
individual capacity, the Plaintiff would have no choice but to engage a process server to personally serve the Defendants. Dkt.
No. 86, Ex. F. However, on this same day, Adler filed with the
Clerk of the Court the executed waiver of service. Dkt. Nos. 36 &
92, Roth at ¶ 3 & Ex. 1 (Docket Report). Presumably due to the
expedient benefit of facsimile, Roth wrote a letter, dated the
very same day, in essence terminating the dialogue between the
two attorneys on this issue with his terse and direct retort that
"[t]he waivers you have for each of the Cornell defendants should
suffice under Rule 4(d) and I do not intend to respond further to
your letters on this point." Dkt. No. 86, Ex. G, Roth's Lt.,
dated Sept. 14, 2004; Dkt. No. 92, Roth at ¶¶ 4-6, & Ex. 2.
Plaintiffs engaged a process server and the Cornell Individual
Defendants were personally served. Dkt. No. 86, Exs. H-L
(affidavits of service).*fn4
On October 1, 2004, Plaintiffs requested leave of court to file
a motion for cost of the service, which was denied as being
premature. Dkt. No. 46, Adler's Lt., dated Oct. 1, 2004; Dkt. No.
49, Order, dated Oct. 4, 2004 (denying the request). On October
5, 2004, all of the Cornell Defendants, including all of the
Cornell Individual Defendants, served and filed a Motion to
Dismiss pursuant to FED. R. CIV. P. 12(b)(6) and 17(a) & (b).
Dkt. No. 51; Dkt. No. 92, Roth at ¶ 8.*fn5 None of the
Cornell Individual Defendants raised a lack of failure to serve
or lack of jurisdiction. Roth at ¶ 8. Plaintiffs renewed their
request for leave to file a motion to recover the cost of
personal service and attorney fees, which was granted on January
14, 2005. See Dkt. Nos. 74 & 75 (text order). As a part of this Motion pursuant to FED. R. CIV. P. 4(d), the
Plaintiffs seek to recover $112 for the actual service of process
and $9,347.50 as reasonable attorney fees for bringing this
Motion. Dkt. No. 86, Ex. M (table of attorney fees and expenses).
In 1993, Congress amended the Federal Rules of Civil Procedure
adding a revised Rule 4(d) which provides a reasonable
alternative and exception to the costly method of service of
process. 1 JAMES WM MOORE, ET AL., MOORE'S FEDERAL PRACTICE, §
4.10[a] (3d. ed. 2004); FED. R. CIV. P. 4 Advisory Committee's
Notes 1993 Amendment) ("The aims of the provision are to
eliminate the cost of service of a summons on many parties and to
foster cooperation among adversaries and counsel."). The salient
provision of Rule 4(d) reads, in part, as follows:
(1) A defendant who waives service of a summons
does not thereby waive any objection to the venue or
to the jurisdiction of the court over the person of
(2) An individual, corporation, or association that
is subject to service under subdivision (e), (f), or
(h) and that receives notice of an action in the
manner provided in this paragraph has a duty to avoid
unnecessary costs of serving the summons. To avoid
costs, the plaintiff may notify such a defendant of
the commencement of the action and request that the
defendant waive service of a summons.
FED. R. CIV. P. 4(d)(1)&(2).
A plaintiff who wishes to exercise this waiver option must
serve appropriate notice upon the defendant that a lawsuit has
been commenced against them and further request such defendant to
waive service of process for the very purpose of controlling
costs and minimizing the often arduous and inconvenient task of
effectuating personal service. If the plaintiff complies with all
of the notice requirements set forth in Rule 4(d), which includes
attaching a copy of the complaint, then the defendant is
compelled to execute the waiver of service or be confronted with
bearing the cost of the personal service upon him. FED. R. CIV.
P. 4(d)(2)(A)-(G). Once a waiver has been returned to the plaintiff who has filed it with the Clerk of the Court, the
litigation is permitted to proceed as if a summons and complaint
had been served upon the defendant. Id. at (4)(d)(4).
Furthermore, the defendant who waives service is granted sixty
days to serve and file an answer or a motion to dismiss. Id. at
4(d)(3). A waiver of service of process, however, does not
constitute a waiver of the defendant's objection to venue or the
court's jurisdiction over the defendant. Id. at 4(d)(1);
Advisory Committee's Notes 1993 Amendment. The defendant "merely
waives the right to be formally served" with a summons and
complaint. 1 MOORE'S FEDERAL PRACTICE at § 4.11; FED. R. CIV. P.
4(d)(2). Failure to waive the service of process shifts the cost
of the actual personal service upon the noncompliant defendant
and further permits the imposition of other costs such as
reasonable attorney fees. FED. R. CIV. P. 4(d)(2) & (5); Morales
v. SI Diamond Technology, Inc., 1999 WL 144469, at *1 & 3
(S.D.N.Y. Mar. 17, 1999) (attorney fees may be imposed only for
the attorney's effort in making a motion to collect the costs of
service). The court may impose these costs when an appropriately
requested defendant fails to comply with a request to waive,
unless the defendant can show good cause for the failure.
Knight-McConnell v. Cummins, 2004 WL 1713824, at *4 (S.D.N.Y.
July 29, 2004) (citing Advisory Committee's Notes 1993 Amendment
for the propositions that a reasonably cooperative defendant may
avoid such cost and that this rule is a "useful" measure against
furtive defendants). In the event that personal service is
required, the plaintiff cannot seek these costs until after the
time to return the waiver has lapsed, which is at least thirty
(30) days from the date that the request is sent. Id. at
4(d)(2)(F); 1 MOORE'S FEDERAL PRACTICE at § 4.13.
A request for waiver of service may only be sent to those
discrete defendants who are subject to service under Rule 4(e),
(f), and (h). FED. R. CIV. P. 4(d)(2); Rule 4 Advisory
Committee's Notes 1993 Amendment. Listed seriatim, those discrete defendants are
"individuals," "corporations," and "association." 1 MOORE'S
FEDERAL PRACTICE at § 4.12. For public policy reasons, neither
governmental agencies nor their employees or officials are
obligated to comply with a request for waiver nor will they be
confronted with bearing the costs of the service of process. Rule
4 Advisory Committee's Notes 1993 Amendment. Service upon
governmental agencies and their employees is governed by Rule
4(j). In this respect, a state official sued in an "official"
capacity is not subjugated to this waiver of service mandate.
The Court agrees with Cornell Individual Defendants that they
were not obligated to complete two waivers even though the
Plaintiffs pled within their Complaint that they were being sued
both individually and in their "professional capacity."*fn6
See Compl. at ¶ 95. For the purpose of serving a summons or
waiving such service of summons, the distinction between
individual and professional capacity is meaningless, and we
concur with the Defendants that their attorneys' execution of one
waiver of the summons on their behalf suffice under Rule 4(d).
Under this provision of law, a defendant is acknowledging that
formal service upon him or her is unnecessary. Once the defendant
has signed a waiver form, he or she has pronounced to the
plaintiff that he or she does not have to bear the expense nor go
through the exercise of having a process server serve a summons
and complaint upon that particularized defendant. In essence, the
waiver of summons is in lieu of an actual service of a summons
and complaint. Nothing more, nothing less. In this respect,
Cornell Individual Defendants have made it clear, on more than
one occasion, that they waive service of the summonses. Nelson Roth,
attorney for all of the Cornell Defendants and their legal agent,
returned an executed waiver of the summonses with a cover letter.
Both documents listed each of the Cornell Individual Defendants
and clearly avowed that "[they] waive service of summons . . .
[and] agree . . . to not requiring that [they] (or the entity on
whose behalf [they are] acting) be served with judicial process
in the matter provided by Rule 4." Dkt. No 86, Ex. A (waiver). If
there was any doubt about the validity of the waiver as to these
Defendants, legal capacity notwithstanding, in response to
Plaintiffs' further insistence that two waivers be executed,
Attorney Roth emphatically assured the Plaintiffs that, "[t]he
waivers you have for each of the Cornell defendants should
suffice under Rule 4. Dkt. No. 87, Ex. 2. Under these
circumstances, and with these assurance, there is nothing more
Cornell Individual Defendants needed to perform.
Nonetheless, there are several other rather obvious principles
that seem to elude the Plaintiffs on the rules of waivers and
service of process. First, only an individual, corporation or
association can receive a waiver. FED. R. CIV. P. 4(d)(2).
Conversely, a waiver of service is not available for a state,
state agency, or a state official. FED. R. CIV. P. 4(j); Advisory
Committee's Notes 1993 Amendment. The debate whether the
Department of Ecology is a state agency and/or its employees are
state employees is totally irrelevant because a waiver of service
upon a state actor is not legally authorized by this provision of
the law.*fn7 Thus, the Cornell Individual Defendants could
have only executed the waiver of service in their individual or
personal capacity, and no other. Since they could not be served
with a waiver in their professional or official capacity, having
to acknowledge such a waiver would be both irrelevant and
superfluous. Second, and the most conspicuous reason why only one waiver is
sufficient in the event a summons and complaint had to be served,
the service of one summons and complaint would be sufficient
and constitute adequate service in order to gain personal
jurisdiction over a defendant, notwithstanding that the defendant
is being sued in one or more capacities. If a summons and
complaint had to be served in the first instance, such service
would not have been in duplicate, triplicate or any multiple
thereof by virtue of the number of legal statuses the individual
defendant may possess. Plain and simple, if one summons and
complaint is adequate for the commencement of an action against a
defendant, it would be nonsensical to require the same defendant
to execute one or more waivers depending on the number of
capacities to which a plaintiff alleges against him. It would be
more preposterous to think that a defendant would have to provide
two answers solely because they have been sued in dual
capacities. In its most basic form, a waiver of service is in
lieu of the service of a summons and complaint.
Plaintiffs express the concern that Cornell Individual
Defendants' employer, Cornell University may attempt to avoid
liability by asserting that the Defendants acted ultra vivres,
outside the scope of their employment. Because of this
possibility, Plaintiffs presuppose that the individual Defendants
would challenge Plaintiffs' claims against them for improper
service or failure to join. The logic of this argument eludes
this Court. The fact that one defendant can assert an affirmative
defense which may exculpate them from liability has no bearing on
the procedural process of waiving the service of a summons.
Moreover, a plaintiff does not have to allege a delineation
between personal and professional capacity in order to invoke
respondent superior. As stated above, if the Plaintiffs had to
serve a summons and complaint upon individual defendants,
notwithstanding their employer's possible defenses or their
sundry legal statuses, only one copy of the summons and complaint, if served properly, would be sufficient to confer
personal jurisdiction over them.
Plaintiffs' paramount concern has been gaining personal
jurisdiction over Defendants. Understandably, they wish to avoid
the possibility of facing a motion which would raise the lack of
personal jurisdiction. Prior to this Court granting, on January
14, 2005, Plaintiffs permission to serve and file this Motion,
the Cornell Defendants, including the individuals, filed a Motion
to Dismiss on October 5, 2004. Within the Motion to Dismiss, the
Cornell Defendants did not raise a lack of personal jurisdiction
and as such, this defense is waived forever. FED. R. CIV. P.
12(g) & (h)(1). Knowing this salient fact, Plaintiffs should
never have brought this Motion for costs and more specifically
attorney fees. At the time of the Motion to Dismiss, all fears of
a jurisdictional motion were set aside, confirming that the
waiver of service conferred good and valid service upon these
Cornell Individual Defendants.
Had the Plaintiffs been more obliging and provided some legal
justification when the Defendants sought legal authority why two
waivers may be necessary, they could have avoided expending $112
in order to have the Cornell Individual Defendants personally
served and the time to bring this Motion. To ask for separate
waivers that turn solely on legal capacities was unreasonable,
especially considering that the Federal Rules of Civil Procedures
do not permit it. The Court finds that the Cornell Individual
Defendants executed the waiver of service of a summons properly.
SONY Music Ent'n., Pedestal Prod., Inc., 2002 WL 1226861, at *3
(S.D.N.Y. Apr. 9, 2002) (plaintiff has not proffered any evidence
that defendants failed to waive service.). Because these
Defendants acted properly, the Court need not address Plaintiffs'
request for cost of service and attorney fees for filing this
Motion. Based upon all of the foregoing, it is hereby Ordered
that the Plaintiffs' Motion (Dkt. No. 86) is denied in its
entirety. IT IS SO ORDERED.