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Teresa Demott and Robbie Pace v. George C. Bacilious

February 24, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


In this diversity action, defendants Noelia C. Moreno, Elrac, Inc., and Enterprise Rent-ACar Corporation (together, "the moving defendants") move for dismissal of the complaint on the basis of a lack of personal jurisdiction and/or improper service, pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5). For the reasons that follow, the Court concludes that plaintiffs have not properly served any of the moving defendants. As to defendants Moreno and Elrac, Inc., the Court exercises its discretion under Federal Rule of Civil Procedure 4(a) to grant plaintiffs 30 days from the date of this Order to properly serve these defendants. As to defendant Enterprise Rent-A-Car, the Court dismisses plaintiffs' claims, without prejudice.

I. Background

This is a personal injury action arising out of a two-car accident that occurred on April 18, 2008, at the intersection of 11th Avenue and West 40th Street in Manhattan. Plaintiff Teresa DeMott, a Connecticut resident, alleges that a car driven by defendant George K. Bacilious and owned by defendant Antoine Mompremter ("the Bacilious car") collided with a rental car driven by defendant Moreno and rented from defendants Elrac, Inc. and Enterprise Rent-A-Car Corporation ("the Moreno car"), and that the rental car then struck her. Plaintiff Robbie Pace, also a Connecticut resident, claims injuries to himself derivative of those to DeMott, his wife.

Defendants Bacilious, Mompremter, and Moreno are New York residents. Defendant Elrac, Inc. is a Delaware corporation doing business in New York. Defendant Enterprise Rent-A-Car is alleged by plaintiffs to be a New York corporation. (In fact, as is discussed later, defendants represent that Enterprise Rent-A-Car is not a corporation doing business in New York, but merely a trademarked name through which Elrac, Inc. has done business.)

Plaintiffs initiated this action on January 20, 2011, by filing a summons and Complaint in New York State Supreme Court, in the Bronx. The moving defendants represent that they first learned of that lawsuit on September 9, 2011, when a copy of the complaint was sent to them by plaintiffs' counsel.

On October 5, 2011, after having obtained consent from plaintiffs to extend the time to appear and answer until October 13, 2011, the moving defendants removed the case to federal court, pursuant to 28 U.S.C. §§ 1332 & 1441. On October 10, 2011, the moving defendants filed an answer. It listed, as an affirmative defense, that the Court lacked personal jurisdiction over the moving defendants because plaintiffs had failed to properly serve them. See Defs.' Mem. Ex. F ¶ 52. The moving defendants also filed cross-claims against defendants Bacilious and Mompremter. The cross-claims were based on the asserted negligence or contributory negligence of the Bacilious car. Id. ¶¶ 53-54.

Defendants Bacilious and Mompremter have not appeared in this action, and are not parties to the pending motion to dismiss.

On December 5, 2011, the moving defendants moved to dismiss, asserting a lack of personal jurisdiction and/or improper service. In support of this motion, defendant Moreno submitted a sworn affidavit attesting that she had not been personally served and that a copy of the summons and complaint had never been left at her residence. Rather, she attested, she had first received a copy of the complaint only by mail. Defs.' Mem. Ex. G. Defendants Elrac, Inc., and Enterprise Rent-A-Car, in turn, argued that plaintiffs' attempted service on them -- via a process server, who purported to effect service on them at an address identified as "619 East Fordham Avenue, Bronx, NY" -- was deficient. On January 3, 2012, plaintiffs responded, arguing that service had been proper as to all three moving defendants, and attaching purported affidavits of service upon the three defendants. On January 27, 2012, the moving defendants submitted a reply.

II. Discussion

A.Applicable Legal Principles

A plaintiff must effectuate valid service of process before the district court can assert personal jurisdiction over a defendant. Yan v. Bah Bocar, No. 04-cv-4194, 2005 U.S. Dist. LEXIS 28390, at *9 (S.D.N.Y. Sept. 8, 2005); Pearson v. Bd. of Educ., No. 02-cv-3629, 2004 U.S. Dist. LEXIS 20492, at *9 (S.D.N.Y. Oct. 12, 2004); Harte v. Iberia Airlines, No. 02-cv-3624, 2002 U.S. Dist. LEXIS 14964, at *5-6 (S.D.N.Y. Aug. 13, 2002); Am. Inst. of Certified Pub. Accountants v. Affinity Card, Inc., 8 F. Supp. 2d 372, 375 (S.D.N.Y. 1998) (citing Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 103 (1987)). Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of an action against a defendant for whom service of process was insufficient.

Federal Rule of Civil Procedure 4 sets forth the rules applicable to service of process. Rule 4(e) provides that, absent a waiver, an individual defendant must be served by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). As to corporate defendants, Rule 4(h)(1) provides that, absent a waiver, a domestic ...

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