United States District Court, S.D. New York
June 21, 2005.
JULIO S. ALVARADO and ANGELA ALVARADO, Plaintiffs,
AMERICAN FREIGHTWAYS, INC. and ANGEL D. DIAZ, Defendants.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM AND ORDER
FedEx Freight East, Inc. (formerly American Freightways, Inc.)
and Angel Diaz (the "defendants") move pursuant to Rule 12(b)(5)
of the Federal Rules of Civil Procedure to dismiss the complaint
filed by Julio and Angela Alvarado (the "plaintiffs" or the
"Alvarados") for insufficiency of service of process. Since the
plaintiffs would then be time-barred from refiling, the
defendants also seek to dismiss the complaint pursuant to Rule 4.
In the event that service is found to be inadequate, the
plaintiffs have cross-moved pursuant to Rule 4(m) for leave to
re-serve process. The parties have consented to my exercising
authority over this case for all purposes pursuant to
28 U.S.C. § 636(c). For the reasons set forth below, the plaintiffs'
cross-motion to re-serve is granted and defendants' motions to
dismiss are denied.
On August 31, 2001, Julio Alvarado was involved in a motor
vehicle accident with Angel Diaz in Mount Vernon, New York.
(Declaration of Elliot B. Pasik dated May 6, 2005 ("Pasik
Decl."), ¶ 3). The truck driven by Mr. Diaz was owned by American
Freightways. (Pasik Decl., ¶ 4).
On August 4, 2004, shortly before the expiration of New York's
three-year statute of limitations on personal injury actions, the
Alvarados filed a complaint against Mr. Diaz and American
Freightways in New York State Supreme Court, Bronx County,
alleging serious injuries and loss of companionship as a result
of the defendants' negligence. (Complaint, ¶¶ 13-14, 20). The
Alvarados then attempted to serve the defendants with a summons
and complaint pursuant to New York Vehicle and Traffic Law
("VTL") § 253 and New York Civil Practice Law and Rules ("CPLR")
§ 306-b which require notice be sent via certified or registered
mail and service be made within 120 days of filing. The plaintiff
must then file the return receipt or undelivered envelope within
30 days of its return. Under VTL § 253, service of process is
completed and the action is commenced when the receipt or
envelope is filed.
The plaintiffs mailed the summons and complaint to the
addresses listed for the defendants on a three-year-old police
accident report. (Plaintiff's Memorandum of Law in Opposition to
the Defendants' Motion and in Support of the Cross-Motion Seeking
Alternative Relief ("Pl. Memo.") at 3rd unnumbered page). These
addresses, however, were incorrect. (Affidavit of Abraham A.
Friedman dated March 28, 2005 ("Friedman Aff."), ¶¶ 9, 13). The
defendants claim that they never received these mailings and that
the plaintiffs did not properly file the undelivered envelopes.
(Friedman Aff., ¶¶ 9-10, 12, 14). The New York Department of
State has no record of service for this action. (Friedman Aff., Exh.
The defendants contend they only became aware of the complaint
on November 12, 2004, when a copy was sent to a law firm they had
retained to perform investigative work. (Friedman Aff., ¶ 11). On
November 19, 2004, shortly after the law firm forwarded the
complaint to FedEx Freight East, the defendants served their
Answer. (Reply Affidavit of Abraham A. Friedman dated May 13,
2005, ¶ 8). On December 6, 2004, the action was removed to
federal court. (Pl. Memo. at 2nd unnumbered page).
The defendants now move to dismiss, claiming that service of
process was insufficient and that the statute of limitations has
expired. In the event that service is found to be defective, the
plaintiffs cross-move for leave to re-serve the defendants.
A. Service of Process
Due process of law requires notice to "apprise interested
parties of the pendency of an action and [to] afford them an
opportunity to present their objections." Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citations
omitted). "It is fundamental that only compliance with statutory
preconditions to the exercise of personal jurisdiction . . . can
result in acquisition of such jurisdiction consistent with due
process requirements." Broughton v. Chrysler Corp.,
144 F.R.D. 23, 26 (W.D.N.Y. 1992) (citations omitted). Actual notice alone
does not constitute service or confer jurisdiction "when there
has not been compliance with prescribed conditions of service."
Buggs v. Ehrnschwender, 968 F.2d 1544, 1548 (2d Cir. 1992) (citation
omitted); see Markoff v. South Nassau Community Hospital,
61 N.Y.2d 283, 288, 473 N.Y.S.2d 766, 768 (1984).
In a removed case, the propriety of service must be determined
according to the law of the state from which the case was
removed. See Bomze v. Nardis Sportswear, 165 F.2d 33, 35 (2d
Cir. 1948); Jones v. Globe International, Inc., Nos.
3:94:CV01468, 3:94:CV01511, 3:94:CV01512, 1995 WL 819177, at *4
(D. Conn. Sept. 26, 1995). Here, the plaintiffs chose to file
their claim in New York State Supreme Court and serve the
defendants pursuant to VTL § 253. Since VTL § 253 affords relief
that is in derogation of the common law, it is strictly
construed. See Bingham v. Ryder Truck Rental, Inc.,
110 A.D.2d 867, 869, 488 N.Y.S.2d 424, 426 (2d Dep't 1985). The law
The plaintiff shall file with the Clerk of the Court
in which the action is pending . . . an affidavit of
compliance herewith, a copy of the summons and
complaint, and either a return receipt purporting to
be signed by the defendant . . .; or, if acceptance
was refused . . ., the original envelope . . . and an
affidavit . . . that notice of such mailing and
refusal was forthwith sent to the defendant by
ordinary mail . . .; or, if the registered or
certified letter was returned to the post office
unclaimed, the original envelope[.]
VTL § 253.
The Alvarados filed their complaint with the Clerk on August 4,
2004. (Pasik Decl., ¶ 5). Then they mailed the summons and
complaint to the addresses listed on the police accident report
from three years earlier. (Pl. Memo. at 3rd unnumbered page). American Freightways has never occupied the address where its
copies of the documents were sent (Friedman Aff., ¶ 9), and Mr.
Diaz has not lived at the address where his copies were mailed
for over five years. (Friedman Aff., ¶ 13). Both defendants claim
they never received these mailings. (Friedman Aff., ¶¶ 10, 14).
There is no evidence on the record before this Court detailing
how American Freightways' return receipt or undelivered envelope
was handled. The plaintiffs claim to have appropriately filed the
envelope they sent to Mr. Diaz, which was returned to them marked
"unclaimed."*fn1 This argument is misplaced.
The statutory term "unclaimed" in VTL § 253 has been
interpreted to cover only those situations where defendant has
notice of the letter and refuses to claim it at the post office.
See La Vallee v. Peer, 104 Misc. 2d 943, 945,
429 N.Y.S.2d 383, 385 (Sup.Ct. Oneida Co. 1980), aff'd, 80 A.D.2d 992,
441 N.Y.S.2d 435 (4th Dep't 1981). When the defendant does not have
notice and does not passively reject the mail by refusing to pick
it up, service is considered insufficient even if the letter is
returned with the mark "unclaimed." See Edley v. Avis Rent A
Car System, LLC, No. 03 Civ. 5065, 2004 WL 594917, at *3
(S.D.N.Y. March 25, 2004). Such is the case here.
Moreover, the plaintiffs' reliance on the addresses listed on the police accident report does not excuse defective service.
Under New York law, "it is settled that the burden of
investigating and determining a defendant's correct address is on
the plaintiff." Bingham, 110 A.D.2d at 869, 488 N.Y.S.2d at 426
(citing Yarusso v. Arbotowicz, 41 N.Y.2d 516, 518,
393 N.Y.S.2d 968, 970 (1977)). The Alvarados did not satisfy this burden.
In Harrington v. Victory Trucking Co., 141 Misc. 2d 327, 331,
533 N.Y.S.2d 233, 236 (Sup.Ct. Suffolk Co. 1988), the court
faced a situation where, as here, "there [was] a three-year
interval between the date of the accident and the filing of the
necessary papers with the County Clerk." Finding it was not
inconceivable that the defendants relocated during the interim
period, the court stated that the plaintiffs' reliance on the
address contained in the police accident report was neither
reasonable nor appropriate. Id. at 331, 533 N.Y.S.2d at 235-36.
Instead, the court wrote that "the method of service employed by
plaintiffs did not comply with [VTL § 253], and was not
reasonably calculated to give [the defendants] notice of any
action sought to be commenced against them." Id. at 332,
533 N.Y.S.2d at 236. Finding such service defective, the Harrington
court held that plaintiffs' filing did not confer jurisdiction.
Id., 533 N.Y.S.2d at 236.
Since the Alvarados' reliance on the police accident report was
unreasonable, the plaintiffs' service of process here was
defective. Therefore, this Court cannot exercise jurisdiction
over the defendants unless they have waived their objection to
the improper service or the plaintiffs are granted an extension
of time to serve process. The defendants' actual notice of the complaint,
by itself, does not confer jurisdiction in the face of the
departure from the procedures required by statute.
B. Waiver of Objection to Defective Service
Lack of personal jurisdiction is a defense that can be waived
by failure to assert it seasonably. Neirbo Co. v. Bethlehem
Corp., 308 U.S. 165, 168 (1939); Burton v. Northern Dutchess
Hospital, 106 F.R.D. 477, 480 (S.D.N.Y. 1985). Although state
law governs the propriety of service, Rules 12(h)(1) and 8(c) of
the Federal Rules of Civil Procedure govern the issue of waiver.
Jones, 1995 WL 819177, at *4; see also Holzsager v. Valley
Hospital, 646 F.2d 792, 795 (2d Cir. 1981); Rentz v. Swift
Transportation Co., 185 F.R.D. 693, 696 (M.D. Ga. 1998); 4A
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1082 (3d ed. 2002); Fed.R.Civ.P. 81(c) ("These
rules apply to civil actions removed to the United States
district courts from the state courts and govern procedure after
Under Rule 12(h)(1) of the Federal Rules of Civil Procedure, "A
defense of . . . insufficiency of service of process is waived
(A) if omitted from a motion [consolidating defenses], or (B) if
it is neither made by motion under this rule nor included in a
responsive pleading. . . ." Although Rule 12(h)(1) contains no
statute of limitations for contesting service, the defense must
be made in a reasonably timely manner or it is waived. Burton,
106 F.R.D. at 481.
A defendant who wishes to raise the defense of insufficient service must do so in its first responsive submission. Index
Fund, Inc. v. Hagopian, 107 F.R.D. 95, 101 (S.D.N.Y. 1985) ("A
defendant who wishes to assert the defense . . . must do so in
either a preliminary Rule 12 motion, or in a responsive pleading,
whichever is filed first."). Asserting the defense in an answer,
however, does not preserve it in perpetuity. Burton,
106 F.R.D. at 481. In analyzing waiver, a central concern has been to
prevent defendants from postponing a challenge until the
plaintiff is time-barred from re-serving. See Santos v. State
Farm Fire & Casualty Co., 902 F.2d 1092, 1096 (2d Cir. 1990) ("A
defendant cannot justly be allowed to lie in wait, masking by
misnomer its contention that service of process has been
insufficient, and then obtain a dismissal on that ground only
after the statute of limitations has run, thereby depriving the
plaintiff of the opportunity to cure the service defect.").
In the defendants' answer, their seventh affirmative defense is
that "this court lacks personal jurisdiction over these answering
defendants by reason of the failure of proper service of
process." (Answer, ¶ 12). While it may be inefficient to transfer
an action before the original court determines whether it has
jurisdiction, see Burton, 106 F.R.D. at 481, the defendants'
actions were not unreasonable. The defendants clearly stated in
their first responsive pleading that service was improper. Cf.
Santos, 902 F.2d at 1095-96 (waiver found where "[n]either the
original answer nor the amended answer did anything more than
baldly state that the court lacked personal jurisdiction over
[the defendant]."). The defendants' answer notified plaintiffs of the
potential insufficiency of their service when they could still
While the defendants did not file this motion quickly enough to
provide the plaintiffs with an opportunity to cure their service
defect, there is no allegation that the defendants' delay was
deliberate. In any event, the defendants' inclusion of the
affirmative defense in their answer weighs heavily against any
finding of deception. Additionally, the defendants' failure to
file this motion before the statute of limitations ran is more
readily attributable to the plaintiffs' tardiness in filing and
sloppiness in serving than to any nefarious actions by the
Since the defendants asserted the defense of insufficient
service in their answer and did not unreasonably postpone this
motion to prevent re-filing, they have not waived the defense
under Federal Rule of Civil Procedure 12(h)(1). Therefore, the
defendants' motion to dismiss for insufficient service must be
granted unless the plaintiffs are given an extension of time to
C. Extension of Service
In a diversity action, Rule 4(m) of the Federal Rules of Civil
Procedure governs any extension of the limitations period for a
plaintiff's claim. See Argentina v. Emery World Wide Delivery
Corp., 167 F.R.D. 359, 361-64 (E.D.N.Y. 1996); Sewell v.
Jones, No. 95 Civ. 6224, 1996 WL 374140, at *2 (S.D.N.Y. July 3,
1996). An extension must be granted if the plaintiff meets the standard for
a good cause extension and may be granted if the court exercises
its discretionary authority to extend the deadline. See Myers
v. Secretary of the Department of the Treasury, 173 F.R.D. 44,
46-47 (E.D.N.Y. 1997).
1. Good Cause Extension
A party seeking a good cause extension bears a heavy burden of
proof. See Geller v. Newell, 602 F. Supp. 501, 502 (S.D.N.Y.
1984). Good cause is generally found only in exceptional
circumstances where the plaintiff's failure to serve process in a
timely manner was the result of circumstances beyond his control.
McKibben v. Credit Lyonnais, No. 98 Civ. 3358, 1999 WL 604883,
at *3 (S.D.N.Y. Aug. 10, 1999). The diligence of the plaintiff's
efforts to effect proper service is an important consideration in
a determination of good cause. See Echevarria v. Department of
Correctional Services, 48 F. Supp. 2d 388, 392-93 (S.D.N.Y.
1999). A delay in service resulting from mere inadvertence,
neglect, or mistake does not constitute good cause. See
McGregor v. United States, 933 F.2d 156, 159-60 (2d Cir. 1991).
Here, the plaintiffs' failure to serve process was not the
result of circumstances beyond their control. Instead, it was the
result of their reliance on addresses listed in a three-year-old
police accident report. Since the plaintiffs do not describe any
efforts made to ensure that these addresses were correct, they
fail to prove they made diligent efforts to effect proper
service. Such neglect does not constitute good cause. 2. Discretionary Extension
The defendants contend that dismissal is mandatory in the
absence of good cause. That is incorrect. Rule 4(m) of the
Federal Rules of Civil Procedure "authorizes the court to relieve
a plaintiff of the consequences of this subdivision even if there
is no good cause shown." Fed.R.Civ.P. 4(m) advisory
committee's note (1993 amendments). Such an extension rests in
the discretion of the Court. See AIG Managed Market Neutral
Fund v. Askin Capital Management, L.P., 197 F.R.D. 104, 109
(S.D.N.Y. 2000). "Factors to be considered in this regard are:
(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." Eastern Refractories Co.
v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 506 (S.D.N.Y.
1999) (citation omitted).
Although the fact that the statute of limitations has run on a
plaintiff's claim is seen as a factor favoring the plaintiff,
see AIG, 197 F.R.D. at 109, it does not guarantee an
extension for every case that may be time-barred if refiled.
Rupert v. Metro-North Commuter Railroad Co., No. 95 Civ. 4283,
1996 WL 447745, at *2 (S.D.N.Y. Aug. 7, 1996); Nobriga v.
Dalton, No. 94 CV 1972, 1996 WL 294354, at *3 (E.D.N.Y. May 28,
1996). Here, however, the strong likelihood that the plaintiffs
would be time-barred from refiling is not the only factor weighing in their favor.
While the defendants' answer shows they did not attempt to
conceal the defect in service, they fail to allege any prejudice
they would experience if the plaintiffs' request were granted.
Their contention that allowing service after the statute of
limitations has expired, by itself, qualifies as prejudice is
erroneous. See AIG, 197 F.R.D. at 111; see also Boley v.
Kaymark, 123 F.3d 756, 758 (3d Cir. 1997) ("Interpreting this
rule, under which the court may extend the time for service to
avoid the bar of limitations, to authorize the court to refuse to
extend it so the defendant may gain the benefit of that bar
appears . . . inconsistent with its purpose."). The fact that the
defendants had actual notice of the complaint also militates
against a finding of prejudice. See AIG, 197 F.R.D. at 111.
Since the plaintiffs would be time-barred from refiling and the
defendants allege no prejudice if Rule 4(m) relief is granted,
the balance of equities tips in favor of the plaintiffs. Granting
the plaintiffs a discretionary extension also furthers the
principle that litigation should generally be resolved on the
merits. See Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995);
Rupert, 1996 WL 447745, at *2; Mejia v. Castle Hotel, Inc.,
164 F.R.D. 343, 346 (S.D.N.Y. 1996).
For the reasons set forth above, the defendants' motions to
dismiss are denied and the plaintiffs' cross-motion for leave to
re-serve is granted. The plaintiffs shall serve the summons and complaint upon the defendants in strict compliance with Rule 4 of
the Federal Rules of Civil Procedure within thirty days from the
date of this order.*fn2