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Conway v. American Red Cross

November 15, 2010

KATRINA D. CONWAY, PLAINTIFF,
v.
THE AMERICAN RED CROSS, HEATHER HARBUS, AND BARBARA WELBORNE, DEFENDANTS.



The opinion of the court was delivered by: Lindsay, Magistrate Judge

REPORT AND RECOMMENDATION

Before the court, on referral from District Judge Sandra J. Feuerstein, is the defendants' American Red Cross and Heather Harbus (the "moving defendants") motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process, and in the alternative pursuant to Federal Rule of Civil Procedure 12(b)(6) and/or Federal Rule of Civil Procedure 56. For the reasons set forth herein, the court recommends that the moving defendants' motion to dismiss be granted.

BACKGROUND

On December 10, 2009, the pro se*fn1 plaintiff, Katrina D. Conway ("Conway") commenced this action in the Supreme Court of the State of New York, County of Suffolk against defendants American Red Cross, Heather Harbus ("Harbus"), and Barbara Welborne ("Welborne") alleging fraudulent misrepresentation, malicious prosecution, abuse of process, intentional infliction of emotional distress and prima facie tort for injuries allegedly sustained by Conway as a result of an incident that occurred at the American Red Cross, Suffolk Chapter in Yaphank, New York on December 26, 2006. See Amended Compl., dated January 14, 2010.

On March 27, 2010, Conway served the summons and amended complaint on Harbus by certified mail, return receipt requested. See Silverman Decl., dated June 3, 2010, Ex. B. On March 30, 2010, Conway served the summons and amended complaint on the American Red Cross by certified mail, return receipt requested. See id., Ex. A. On April 30, 2010, Conway attempted to serve the summons and amended complaint on Welborne by delivering a copy of the documents to an employee at the American Red Cross. See Pl.'s Memo. in Opp., dated July 30, 2010, at 3, Ex. D.

The moving defendants timely removed the action to this court on April 26, 2010. By letter dated May 3, 2010, the moving defendants requested a pre-motion conference in anticipation of filing a motion to dismiss pursuant to Federal Rule Civil Procedure 12. On May 5, 2010, District Judge Joseph Bianco*fn2 waived the pre-motion requirement and issued a briefing schedule for the motion.

By letter dated May 22, 2010, Conway moved for a default judgment against defendant Welborne. Based on the court's review of the letter motion and attachments, District Judge Bianco denied the motion by Order, dated May 27, 2010 on the ground that it appeared Welborne had not been properly served under Federal Rule of Civil Procedure 4(e). In the order, District Judge Bianco instructed that:

If counsel for defendants the American Red Cross and Heather Harbus is also authorized to accept service on Ms. Welborne's behalf, she shall notify the Court by Friday, June 4, 2010. If not, plaintiff will need to properly serve Ms. Welborne with the summons and amended complaint by personal service or another permissible means of service.

Order, dated May 27, 2010. In response to the order, counsel for the moving defendants stated that she was not authorized to accept service on behalf of Welborne because on the date of the purported service, Welborne was no longer employed by defendant American Red Cross. See Silverman Letter, dated June 3, 2010.

The American Red Cross and Harbus now move to dismiss for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), or alternatively pursuant to Federal Rule of Civil Procedure 12(b)(6) or 56.

DISCUSSION

A. Standard for a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5)

"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Dynegy Midstream Servs. v. Trammochem, 45l F.3d 89, 94 (2d Cirl. 2006) (internal quotation marks and citation omitted); see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) ("The requirement that jurisdiction be established as a threshold matter spring[s] from the nature and limits of the judicial power of the United States and is inflexible and without exception") (internal quotation marks and citation omitted); see also Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963) (en banc) ("[L]ogic compel[s] initial consideration of the issue of jurisdiction . . . . [A] court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim "). In considering a Rule 12(b)(5) motion to dismiss for insufficient service of process, the court "must look to matters outside the complaint to determine whether it has jurisdiction." Hertzner v. United States Postal Serv., No. 05-CV-2371 (DRH) (ARL), 2007 WL 869585, at *3 (E.D.N.Y. Mar. 20, 2007).

"[W]hen a defendant moves to dismiss under rule 12(b)(5), the plaintiff bears the burden of proving adequate service." Burda Media, Inc. v. Viertel, 417 F.3d 292. 298-99 (2d Cir. 2005) (citation omitted); see Schwasnick v. Fields, No. 08-CV-4759 (JS) (ARL), 2010 WL 2679935, at *2 (E.D.N.Y. June 30, 2010) (same). Thus, it is Conway's burden of proof to establish that service of process was proper on defendant Harbus, a natural person, and on defendant the American Red Cross, a corporation.

(1) Service upon defendant Harbus

Service of process upon an individual within a judicial district of the United States is governed by Federal Rule of Civil Procedure 4(e) which ...


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