The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Kristine Zaffuto ("Plaintiff") brings this action against Peregrine Health Management ("Peregrine Health"), alleging job discrimination on account of her sex, and unlawful retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. Peregrine Health has moved to dismiss the complaint pursuant to Rules 12(b)(1), (b)(2) and (b)(5) of the Federal Rules of Civil Procedure. Plaintiff has cross-moved for an order under Rule 4(m), granting her an extension of time to effect service on defendant.
Plaintiff alleges that she was hired by Peregrine Health in March 2007, and that she was employed at Crimson Ridge Meadows, an assisted-living facility owned by Peregrine Health in Greece, New York.
Plaintiff alleges that during her employment at Peregrine Health, she was subjected to various forms of sex discrimination, as well as retaliation because of her complaints about that discrimination. The details of her allegations are not important for purposes of the present motions.
Peregrine contends that as of March 7, 2009, Peregrine Walton, LLC ("Peregrine Walton"), an affiliated, but wholly separate and distinct entity from Peregrine Health, took over the management operations of Crimson Ridge Meadows, and became plaintiff's employer. Plaintiff continued to work at Crimson Ridge Meadows until she left her employment in September 2009.*fn1
On October 19, 2009, plaintiff filed a charge of discrimination against Peregrine Health with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a right-to-sue letter on August 27, 2010.
Plaintiff commenced this action on September 27, 2010. On November 24, 2010, plaintiff filed a proof of service (Dkt. #2) indicating that, on November 23, 2010, a process server, Steve Collins, had served a copy of the summons on "Karen Fusilli - Executive Director," who was allegedly designated to accept service on behalf of Peregrine Health. The accompanying summons was addressed to Peregrine Health, at 3 Treeline Drive in Rochester.*fn2 Id.
Defendant contends that this service was ineffective, because Fusilli is not, and was not at the time of service, an officer or agent of Peregrine Health, and was not authorized to accept service on behalf of Peregrine Health. According to defendant, Fusilli was employed by Peregrine Walton, and was the administrator of Crimson Ridge Gardens, which was not the same facility as Crimson Ridge Meadows, where plaintiff worked. See Declaration of Stephen Bowman (Dkt. #5-3).
Based on these assertions, defendant contends that plaintiff has failed to effect service on Peregrine Health, and that the Court therefore lacks personal jurisdiction over Peregrine Health.
Defendant also contends that the Court lacks subject matter jurisdiction over plaintiff's claims arising after March 6, 2009, since after that date, plaintiff was no longer employed by Peregrine Health, but by Peregrine Walton, which she has not sued.
I. Motions to Dismiss: General Principles
Where a defendant moves for dismissal under Rules 12(b)(1) (lack of subject matter jurisdiction),12(b)(2) (lack of personal jurisdiction), or 12(b)(5) (insufficient service of process), the court may consider materials outside the pleadings in deciding the motion. See Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010); Rosario v. Cirigliano, No. 10 Civ. 6664, 2011 WL 4063257, at *2 (S.D.N.Y. Sept.12, 2011); McCoy ...