The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiffs commenced this medical malpractice action on July 18, 2007 pursuant to the Court's diversity jurisdiction. See Compl. ¶¶ 1-5. Plaintiffs assert that Defendants were negligent, grossly negligent and wantonly reckless by failing to properly "diagnose, test, or treat" Plaintiff Patrick Murray for "his cardiac heart condition" and by certifying "Plaintiff to be fit for the extreme stress of a war zone in the Republic of Iraq." Id. ¶ 9.
Defendant Dr. Rakish Malhorta previously moved to dismiss the action against him:
(a) for insufficient service of process; (b) for lack of personal jurisdiction; (c) for failure to state a claim upon which can be granted, and (d) for failure to plead in accordance with Fed. R. Civ. P. 8. By Decision and Order dated October 1, 2007, the Court granted Defendant's motion to dismiss for insufficiency of process, but gave Plaintiff until November 16, 2007 to effectuate service and move to vacate the October 1, 2007 Order. Plaintiff now moves to vacate the October 1 Order. Defendant cross-moves for dismissal for the reasons set forth above.
A. Service of Process/Lack of Personal Jurisdiction
Plaintiff claims that service upon Malhorta was properly effectuated pursuant to N.Y.C.P.L.R. § 308(4)'s nail and mail provision. Defendant responds that, because he lives in Pennsylvania, Plaintiff should have effectuated service under Pennsylvania law; not New York law. Defendant further argues that §308 only applies to service within New York State. Defendant's contentions must be rejected.
Fed. R. Civ. P. 4(e) plainly provides that "service upon an individual from whom a waiver has not been obtained and filed . . . 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. . . ." Because this Court sits in New York, it was proper for Plaintiff to use New York law to effectuate service. Parkins v. St. John, 2004 WL 1620897, at *2 (S.D.N.Y. 2004). Under New York law, extraterritorial service may be effectuated by using N.Y.C.P.L.R. § 308(4). See N.Y.C.P.L.R. § 313; Weimer v. Lake, 268 A.D.2d 741 (3d Dep't 2000).
Defendant has not contended that he was improperly served under N.Y.C.P.L.R. § 308(4). Accordingly, the motion to vacate is GRANTED and the cross-motion to dismiss for improper service is DENIED.
Defendant next contends that this action should be dismissed because he is immune from liability. Defendant argues that he "was technically an employee of the United States Army and should therefore be immune from liability." Def.'s Mem. of Law at 3.
There is no allegation or assertion in the Complaint that Defendant was an employee of the United States. Whether Defendant was an employee of the United States who is entitled to invoke the immunity of the United States is a matter that is not proper for resolution on a motion to dismiss. This is a factual matter that may be ...