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Deborah Lewis, Individually and As Legal Representative of Forrest Lewis, et al v. Fmc Corporation

August 17, 2012

DEBORAH LEWIS, INDIVIDUALLY AND AS LEGAL REPRESENTATIVE OF FORREST LEWIS, ET AL., PLAINTIFFS,
v.
FMC CORPORATION, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiffs, all residents of the Village of Middleport, Niagara County, New York, commenced this tort action, on September 29, 2011, by filing a Summons and Complaint in New York State Supreme Court, County of Erie. On October 19, 2011, Defendant FMC both removed the action to this Court based on diversity of citizenship, and filed a Motion to Dismiss pursuant to Rules 12(b)(5) and (6) of the Federal Rules of Civil Procedure. For the reasons stated below, the Motion to Dismiss (Docket No. 3) is granted.

II. BACKGROUND

A. Procedural Background

In 2004, Plaintiffs commenced a citizen suit in the United States District Court, Western District of New York, asserting claims under various federal environmental statutes and New York common law. They claimed damages based on the alleged migration of contaminants from FMC's pesticide formulations facility located in Middleport, New York to their nearby properties. On March 29, 2011, this Court granted FMC's motion for summary judgment with respect to each of Plaintiffs' federal claims, and then declined to exercise jurisdiction over their state common law claims for private nuisance, public nuisance, and personal injury and property damage.*fn1 Lewis v. FMC, 786 F. Supp. 2d 690 (W.D.N.Y. 2011).

The present action reasserts those prior state law claims. In filing the present action, Plaintiffs rely on New York C.P.L.R. § 205(a), which provides that, except in circumstances not relevant here, a plaintiff "may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination [of the prior action] provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period." In short, Plaintiffs could validly reassert in state court the claims not decided on the merits in this Court so long as their new complaint was both filed and properly served no later than September 29, 2011. FMC concedes the timeliness of Plaintiffs' state court filing, which is date-stamped September 29, 2011. But, FMC contends it was not properly served within the relevant six-month period and that Plaintiffs' claims are now time-barred.

Both parties submitted affidavits relative to service, in which the following facts are undisputed. FMC Corporation is a Delaware corporation with its principal place of business located in Philadelphia, Pennsylvania. CT Corporation System, located in New York, New York, is FMC's registered agent for service of process in New York State. The foregoing information is on file with the New York State Department of State Division of Corporations and publicly available on the Department of State's website.

Lori Morrison is employed by FMC Corporation at its manufacturing plant located at 35 Sawyer Ave., Tonawanda, New York. In her position as Management Systems Administrator, Morrison serves as a general receptionist for the plant, performs various data entry tasks, and signs for UPS and Fed Ex deliveries. She is not authorized to accept service of process on behalf of FMC.

On September 29, 2011, at approximately 4:00 p.m., John Altieri approached the Tonawanda plant's entry gate. Plant visitors are directed, via written instructions, to enter numbers on a keypad to request access. Such calls are routed to a security guard from 8:00 a.m. to 3:30 p.m., and thereafter, are routed to Morrison. Altieri followed the instructions for access, and Morrison answered his call. After Altieri identified himself as a process server, Morrison directed him to the office building and opened the gate. Altieri entered the building and approached Morrison's desk.

The content of their brief exchange is in dispute. According to Morrison, Altieri never asked if she was authorized to accept service on behalf of FMC, and when she asked who the summons was for, Altieri said "anyone." Two other FMC employees, Allison Balling and Debra Overkamp, who were chatting with Morrison at her desk when Altieri arrived, also attest that there was no discussion as to who was authorized to accept service on FMC's behalf, and that Altieri stated the summons was for "anyone." Altieri, on the other hand, avers that he asked whether there was "anybody here who can accept service on FMC," and Morrison responded that she could.

Following their exchange, Altieri handed Morrison the Summons and Complaint, which she did not refuse. He then asked her title, which Morrison gave him.

FMC contends the delivery to Morrison did not constitute effective service, and Plaintiffs claim that it did. Based on these disparate accounts, the Court scheduled an evidentiary hearing for July 11, 2012. The witness testimony will be assessed in conjunction ...


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