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Closure v. Onondaga County

February 7, 2007

MARY CLOSURE, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF UNLISTED MINORS, MARLA MOULTRIE, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF UNLISTED MINORS, YVONNE OXENDINE, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF UNLISTED MINOR, AND CRYSTAL ERVIN, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF UNLISTED MINORS, PLAINTIFFS,
v.
ONONDAGA COUNTY, ONONDAGA COUNTY SHERIFF'S DEPARTMENT, THE CITY OF SYRACUSE, THE CITY OF SYRACUSE POLICE DEPARTMENT, KEVIN WALSH, AS SHERIFF OF ONONDAGA COUNTY, JAMES RENNA, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, F. LAMBERTSON, INDIVIDUALLY AND AS AN OFFICER OF THE SYRACUSE POLICE DEPARTMENT, J. ZACKUS, INDIVIDUALLY AND AS AN OFFICER OF THE SYRACUSE POLICE DEPARTMENT, KEVIN MURPHY, INDIVIDUALLY AND AS A SERGEANT IN THE ONONDAGA SHERIFF'S OFFICE, F. MENDOLIA, INDIVIDUALLY AND AS A DEPUTY OF THE ONONDAGA COUNTY SHERIFF'S DEPARTMENT, AND M. SACCO, INDIVIDUALLY AND AS AN INVESTIGATOR IN THE ONONDAGA COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge

MEMORANDUM-DECISION AND ORDER

Plaintiffs Mary Closure ("Closure"), Marla Moultrie ("Moultrie"), Yvonne Oxendine ("Oxendine"), and Crystal Ervin ("Ervin"), individually and as parents and natural guardians of unlisted minor(s) (collectively "plaintiffs"), bring this civil rights action against the City of Syracuse ("City"), the City of Syracuse Police Department, Chief Gary Miguel ("Miguel"), Officer James Renna ("Renna"), Officer F. Lambertson ("Lambertson"), and Officer J. Zackus ("Zackus") (collectively, the "City Defendants"); Onondaga County ("County"), Onondaga County Sheriff's Department, Sheriff Kevin Walsh ("Walsh"), Sergeant Kevin Murphy ("Murphy"), Deputy F. Mendolia ("Mendolia"), and Investigator M. Sacco ("Sacco") (collectively, the "County Defendants"), pursuant to 42 U.S.C.A. § 1983. Plaintiffs seek redress for alleged violations of the civil rights secured to them by the Fourth, Sixth, and Fourteenth Amendments to the United States Constitution in the form of general damages, punitive damages, and legal costs and expenses, including reasonable attorneys' fees. Specifically, the complaint alleges illegal search and seizure; negligent and wrongful execution of a search warrant; negligent training and supervision of defendant police officers; common law torts of assault, battery, false arrest, and false imprisonment; and negligent and intentional infliction of emotional distress. The court has jurisdiction over this matter pursuant to 28 U.S.C.A. § 1331 and 1343(a)(3).

Currently before the court is the City Defendants' motion to dismiss the complaint (Doc. No. 7, the "City Motion") for insufficiency of service of process pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), or in the alternative, to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim on which relief can be granted. Also pending is the County Defendants' motion to dismiss the complaint (Doc. No. 13, the "County Motion") pursuant to Fed.R.Civ.P. Rule 12(b)(6). For the reasons set forth below, the defendants' motions will be granted.

I. Background

The following facts are taken from the record of the case, and are presumed to be true for the purpose of these motions to dismiss. At approximately 6:00 a.m. on the morning of August 2, 2005, defendants Renna, Mendolia, Sacco, Lambertson and Zackus entered plaintiffs' residence at 336 Primrose Avenue, Syracuse, New York on a valid "no knock" search/arrest warrant meant for 338 Primrose Avenue, for the purpose of arresting Joseph L. Derby, Jr. These named defendants restrained the occupants of the residence while they searched the home. Within minutes of entering the residence, defendant police officers realized that they were in the wrong house, whereupon they left the residence at 336 Primrose Avenue and proceeded to 338 Primrose Avenue, where they took Mr. Derby into custody. The court takes judicial notice of the fact that the warrant, submitted under seal, was facially valid.

II. Discussion

A. Service of Process

As a threshold matter, the City Defendants move to dismiss the complaint against Officers Renna, Lambertson, and Zackus pursuant to Rule 12(b)(5) as service upon them was allegedly insufficient. "Service of process ... is properly regarded as a matter discrete from a court's jurisdiction to adjudicate a controversy of a particular kind, or against a particular individual or entity ... Instead, the core function of service is to supply notice of the pendency of a legal action, in a manner and time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections." Henderson v. U.S., 517 U.S. 654, 671-72, 116 S.Ct. 1638 (1996). "When a defendant raises a Rule 12(b)(5) challenge to the sufficiency of process, the plaintiff bears the burden of proving its adequacy." Chesney v. Valley Stream Union Free School Dist. No. 24, Slip Copy, 2006 WL 2713934 * 3 (E.D.N.Y.2006) (citing Preston v. New York, 223 F. Supp.2d 452, 466 (S.D.N.Y. 2002).

Service upon individuals within a judicial district of the United States is governed by Fed.R.Civ.P. Rule 4(e) which states that

Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in any judicial district of the United States:

(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the state; or

(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

Fed.R.Civ.P. Rule 4(e) (West 2007).

The relevant New York State statute for service of process is McKinney's C.P.L.R. § 308. Subsection 2 of § 308, in pertinent part, provides for service of process 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 ...


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