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Mascoll v. Strumpf

August 25, 2006

JANET P. MASCOLL, PLAINTIFF,
v.
LINDA STRUMPF, ESQ., HAL SIEGEL AND BANK OF AMERICA AND SUBSIDIARIES, DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM and ORDER

Plaintiff, Janet P. Mascoll, brings this pro se action against Bank of America ("BOA"), certain unnamed BOA "subsidiaries," debt collector Linda Strumpf, Esq., and her employee and husband, Hal Siegel, alleging that defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, and New York General Business Law ("GBL") § 349 by persisting in attempts to collect a debt which BOA had previously determined was not actually owed. BOA now moves to dismiss plaintiff's claims against it on the ground that plaintiff has not yet served it with a summons and complaint. See Fed. R. Civ. P. 4(m) and 12(b)(5). For the reasons stated below, BOA's motion is denied.

BACKGROUND

On February 3, 2005, plaintiff commenced this action by filing a fee-paid, pro se complaint in this Court. On February 24, 2005, Magistrate Judge Lois Bloom issued an order which, inter alia, directed plaintiff to serve the summons and complaint upon the defendants by June 6, 2005. The order quoted Rule 4(m) of the Federal Rules of Civil Procedure and specifically advised plaintiff that if she failed to either serve defendants by June 6, 2005, or show cause why service could not be effected by that date, Judge Bloom would recommend dismissing the action without prejudice.

On June 3, 2005, plaintiff filed three affidavits, purporting to show that one Edith S. Johnson personally served the summons and complaint on Strumpf, Siegel and a Manhattan attorney, Barry Glickman, on May 25, 2005. BOA, represented by the aforementioned Barry Glickman, now moves to dismiss plaintiff's complaint as against it, arguing that Glickman was not authorized to accept service of process and that plaintiff, therefore, failed to properly serve BOA within 120 days of filing its complaint, as required by Fed. R. Civ. P. 4(m).

BOA admits that it had actual notice of this litigation, since a mailing containing a copy of plaintiff's summons and complaint was received by a BOA "location" in Charlotte, North Carolina, on or about February 10, 2005. Memorandum of Points and Authorities in Support of BOA's Motion to Dismiss ("BOA's Memo") at 4. Moreover, according to a date stamp on the copy of the summons attached as Exhibit A to Glickman's Declaration in support of BOA's motion, the summons was sent to the Legal Department at BOA's San Francisco headquarters, where it was received on February 15, 2005. BOA's Legal Department apparently referred the matter to Glickman, who had a telephone conversation with plaintiff on April 5, 2005.

In BOA's Memo, Glickman claims that he attempted to persuade plaintiff to dismiss the action against BOA and "emphasized to plaintiff that she had not served [BOA] in accordance with the service requirements of the Federal Rules of Civil Procedure." Id. at 5. Glickman claims that he also informed plaintiff that he was not authorized to accept service on behalf of BOA. Id. Plaintiff nevertheless served Glickman, delivering another copy of the summons and complaint to him on May 25, 2005. Id.

Glickman then sent plaintiff a letter, dated June 1, 2005, in which he again told plaintiff that she had failed to effect service on BOA, stating, "it is clear that delivery of the complaint to us does not constitute good service." Id.; Glickman Declaration, Ex. E. However, plaintiff made no further attempts to serve BOA. Accordingly, BOA now argues that, since plaintiff failed to effect good service within 120 days of filing the complaint, Rule 4(m) of the Federal Rules of Civil Procedure mandates that this action be dismissed.

In response to this motion, plaintiff acknowledges that she bears the burden of proving that "service of process was performed correctly and legally." Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants' Motion for Dismissal and Summary Judgment ("Pl. Memo") at 4. In attempting to meet this burden, plaintiff asserts that service may be made upon a corporation "by certified mail at any of 'its usual places of business,'" id. at 3-4 (emphasis omitted), and that she properly served BOA by sending a copy of the summons and complaint, via certified mail, to 101 S. Tyron Street, Charlotte, North Carolina. Id. at 4. Plaintiff further alleges that BOA's "corporate center or principal place of business is located in Charlotte," and that she was told by an unspecified source that the Tyron Street address "housed the legal department." Id.

DISCUSSION

Rule 4(m) of the Federal Rules of Civil Procedure provides that

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

As plaintiff acknowledges in her response to BOA's Motion, "[o]nce a defendant raises a challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy." Darden v. DaimlerChrysler North Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002) (citing Howard v. Klynveld Peat Marwick Goerdeler, 977 F. Supp. 654, 658 (S.D.N.Y. 1997), aff'd, 173 F.3d 844 (2d Cir. 1999)).

Plaintiff has not met that burden in this case. Service upon a domestic corporation, such as BOA, is effected: in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one ...


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