The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiffs bring this action on behalf of their daughter, J.G., pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Specifically, Plaintiffs appeal from an April 16, 2007 decision by a New York State Review Officer ("SRO") regarding their child's proposed educational program. See 20 U.S.C. § 1415(i)(2)(A). On September 17, 2007, Defendant Board of Education of the Briarcliff Manor Union Free School District ("Defendant") filed a Motion to Dismiss the Complaint for insufficient service of process. Plaintiffs oppose the Motion on grounds that process was timely re-served. For the reasons stated below, Defendant's Motion is DENIED.
Plaintiffs filed their Complaint on August 14, 2007. Shortly after filing, Plaintiffs provided the Summons and Complaint to their regular process server, Stanley P. Tomasetti, along with written instructions to serve the materials on a person authorized to accept them on behalf of Defendant. (Pls.' Resp. to the Mot. to Dismiss ("Pls.' Resp.") ¶¶ 5, 9.) A notarized affidavit signed by Tomasetti attests that service was made on Friday, August 24, 2007, at 1:06 p.m. (Leah L. Murphy, Esq. Aff. in Supp. of Mot. to Dismiss ("Murphy Aff.") Ex. A.) The Tomasetti Affidavit states that service was made upon "Jane Smith, Clerk authorized to accept who refused true name." (Id.) This clerk was described in the Affidavit as a white female, approximately 33 years of age, with blonde hair and glasses. (Id.)
In fact, according to Defendant, the clerk is Jaunita Brockett, who is described in Defendant's Motion as "not white and . . . not blonde." (Id. ¶ 17.) At approximately 1:07 p.m of the same day, a security camera in the lobby of the building where the service allegedly took place captured an individual placing a manilla envelope in the handle of a door leading to the Principal's office of Todd Elementary School. (Id. ¶ 18.) The following Monday morning, August 27, 2007, a custodian at the school found the materials and handed them to Lois Olivieri, a secretary in the building. (Lois Olivieri Aff. in Supp. of Mot. to Dismiss ("Olivieri Aff.") ¶¶ 1-2.) Ms. Olivieri placed the materials on the desk of the secretary to the Principal, Karen Gisondi. (Id. ¶ 3.) Ms. Gisondi then handed the documents over to the secretary of the Superintendent.*fn1
Defendant promptly moved on September 13, 2007, to dismiss the Complaint for insufficient service of process under Federal Rules of Civil Procedure 4 and 12(b)(5). Defendant further contends that Plaintiffs attempted to conceal the faulty service by filing a false affidavit (Murphy Aff. ¶ 22), but offers no evidence whatsoever that Plaintiffs' counsel was aware that the Affidavit was inaccurate.
At the instruction of counsel, Plaintiffs re-served Defendant on September 19, 2007, using a different process server. (Pls.' Resp. ¶¶ 6-7.) Upon inquiry with the first server's supervisor, Plaintiffs were advised that the server claimed that he was told by a school district representative to leave the papers as he did. (Id. ¶ 6.) Plaintiffs maintain that they have used the aforementioned process server for years without issue and had no reason to dispute the initial Affidavit until contested by Defendant. (Id. ¶¶ 5, 8.) Defendant, on the other hand, argues that Plaintiffs failed to use reasonable diligence in serving process because they did not question the identity of the unnamed clerk in the Affidavit. (Murphy Aff. ¶¶ 25-26.)
A. Commencement of IDEA Action
The IDEA provides that a party has ninety days to commence an appeal from a hearing decision, unless the state has extended the statute of limitations for bringing such appeals. See 20 U.S.C. § 1415(i)(2)(B). Because New York law provides that parties to a state administrative hearing have four months to appeal a decision, N.Y. Educ. Law. § 4404(3)(a), the statute of limitations for bringing IDEA appeals in federal court in New York is extended from ninety days to four months. See Pierre ex rel. Pierre v.
Dep't of Educ., No. 07-CV-6270, 2008 WL 2369224, at *1 n.2 (S.D.N.Y. June 10, 2008) ("The IDEA provides that parties aggrieved by a state agency's final decision may bring an action for relief in federal or state court. New York law requires that such actions be brought within four months of the SRO's decision." (internal citations omitted)); see also Adler v. Educ. Dep't of N.Y., 760 F.2d 454, 459 (2d Cir. 1985) ("[W]here a federal statute provides that suit may be brought in both federal and state court, there is something to be said for having the same statute of limitations applicable in both, at least to avoid forum shopping by prospective plaintiffs."). Plaintiff's Complaint was filed on August 14, 2007 -- within four months of the SRO's April 16, 2007 decision -- thus satisfying the IDEA statute of limitations. Accordingly, the issue before the Court is not whether Plaintiffs satisfied the statute of limitations by filing the Complaint on August 14, 2007, but whether the Complaint was served on Defendant in a timely manner.
Under Federal Rule of Civil Procedure 12(b)(5) Defendant seeks dismissal of Plaintiffs' action pursuant to Federal Rule of Civil Procedure 12(b)(5) ("Rule 12(b)(5)") on the grounds that service, even as corrected, was untimely. "[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l. Co. v. Malaysia Int'l. Shipping Corp., 127 S.Ct. 1184, 1191 (2007). Valid service is a ...