The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Court Judge
MEMORANDUM DECISION and ORDER
Currently pending before this Court in this employment discrimination action is a motion to dismiss filed by Summit Apartments ("Defendant"). (Dkt. No. 12.) For the reasons set forth below, Defendant's motion is denied, and Derek Pride ("Plaintiff") is granted additional time to properly serve Defendant.
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 against Defendant, d/b/a Summit Acquisitions, L.L.C., a limited liability company organized under the laws of Indiana, and authorized to do business in the State of New York. (Dkt. No. 12, Attach. 5, at 3 [Def.'s Memo. of Law].) Generally, in his Complaint, Plaintiff alleges that Defendant terminated his employment because of his race, in violation of the 1964 Civil Rights Act. (See generally Dkt. No. 1, Attach. 1.) As a result, Plaintiff seeks compensatory damages for loss of wages and pain and suffering. (Id.)
On or about September 17, 2009, Plaintiff forwarded the summons and a copy of the Complaint to the U.S. Marshal's Service for service in accordance with Fed. R. Civ. P. 4(e)(1). (Dkt. No. 10, at 1.) The summons and Complaint were mailed in an envelope bearing the name and address as follows: Summit Apartments, 301 Columbus Avenue, Syracuse, N.Y. 13210. (Dkt. No. 10, at 1.) However, Form USM 299, Acknowledgment of Receipt of Summons and Complaint by Mail, was not returned within thirty days of the initial mailing of the pleadings. (Dkt. No. 10, at 2.) Thus, Defendant was not served under Fed. R. Civ. P. 4(e)(1).
Plaintiff then forwarded another summons and Complaint to the U.S. Marshal's Service for service upon Defendant. (Dkt. No. 14, at 1 [Form USM-285 (Process Receipt and Return)].) On or about March 4, 2010, the summons and Complaint were sent by certified mail to Linda Niccom, 3020 Congressional Parkway, Suite E-F, Fort Wayne, Indiana 46808. (Dkt. No. 14, at 3 [Proof of Service].)
III. DEFENDANT'S MOTION TO DISMISS
On or about March 23, 2010, Defendant moved to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(5). (See generally Dkt. No. 12, Attach. 5 [Def.'s Memo. of Law].) In its memorandum of law, Defendant argues that service upon Linda Niccom was insufficient under Fed. R. Civ. P. 4(h)(1)(B), which requires that service on an unincorporated association be made "by delivering a copy of the summons and 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." Accord Indiana Trial Rule 4.6 (stating that, in Indiana, service upon an organization may be made upon an "executive officer" or registered agent). More specifically, Defendant argues that Ms. Niccom is neither an agent, nor an officer of Defendant's organization authorized by appointment or by law to receive service of process. (Dkt. No. 12, Attach. 5, at 5.) Moreover, Defendant argues that Ms. Niccom, who is an administrative assistant employed by a different corporation--Summit Management, LLC--has no individual authority to act on behalf of Defendant. Id.*fn1
As a preliminary matter, the Court recognizes the legal basis of Defendant's motion. In Pogge v. Sheet Metal Workers' Int'l Ass'n Local 3, a plaintiff's service on an administrative assistant was held to be improper under circumstances resembling the current case. Pogge, 2009 WL 324174, at *3, 2009 U.S. Dist. LEXIS 9529, at *8-9 (D. Neb. Feb. 9, 2009). In Pogge, the district court found that an administrative assistant did not qualify as an officer, general manager, or authorized agent of defendant for purposes of service. Accordingly, the court held service to be invalid under Fed. R. Civ. P. 4(h)(1)(B). Id.*fn2
Here, as in Pogge, Plaintiff's summons and Complaint was addressed to an administrative assistant, Ms. Linda Niccom. (See Dkt. No. 12, Attach. 4 [Envelope addressed to Linda Niccom]; see also Dkt. No. 12, Attach. 3 [Affidavit of Linda Niccom].) Moreover, the Court agrees with Defendant that Ms. Niccom's position as an administrative assistant appears to be outside the categories of persons on whom service may be made under both Fed. R. Civ. P. 4(h)(1)(B) and Indiana Trial Rule 4.6(A).*fn3 Furthermore, Plaintiff, who bears the burden of proof with respect to proper service, has not provided this Court with evidence negating the categorical exclusion of Ms. Niccom from the parties contemplated by Fed. R. Civ. P. 4(h)(1)(B) and Indiana Trial Rule 4.6(A). See 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)(stating that, when a defendant challenges sufficiency of service of process, "the burden of proof is on the plaintiff to show the adequacy of service"). As a result, under these circumstances, the Court concludes that service was insufficient.
However, dismissal of Plaintiff's Complaint for want of proper service is not mandated by law. In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5), a court has discretion to decline to dismiss a complaint in order to allow an additional attempt at service. Grammenos v. Lemos, 457 F.2d 1067, 1071 (2d Cir. 1972) ("[T]he fact of invalidity of the one attempt at service does not automatically require dismissal of the complaint.... [T]he court has power, under Fed. R. Civ. P. 4(a), if the service is invalid or improper, to cause additional or new summons to be issued and good service attempted.").*fn4 Moreover, "[w]hen dealing with pro se parties, courts interpret the rules dealing with service of process liberally." St. John Rennalls v. County of Westchester, 159 F.R.D. 418, 420 (S.D.N.Y. 1994).*fn5
A court may, however, require a showing of good cause as a precondition to an extension of time in the event service has not been effectuated in the time prescribed by the Federal Rules of Civil Procedure, or time has run because of improper service. Fed. R. Civ. P. 4(m) ("If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period...."). ...