United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
The United States of America ("United States" or "plaintiff") commenced this civil action against defendant Anna Jost ("defendant") pursuant to Title IV, Part D of the Higher Education Act of 1965, as amended, 20 U.S.C. §1087. (Dkt. No. 1) Plaintiff is seeking to recover payments allegedly due and unpaid on student loans insured by the United States Department of Education under the William D. Ford Federal Direct Loan Program.
Defendant has moved to dismiss the complaint for improper service of process, lack of capacity and lack of standing to sue, and failure to prosecute. (Dkt. Nos. 9 and 10) For the reasons that follow, defendant's motion to dismiss is denied in its entirety.
A complaint should be dismissed only if it fails to contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a motion to dismiss, "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Todd v. Exon Corp., 275 F.3d 191, 198 (2d. Cir. 2011).
Insufficient Service of Process
Defendant seeks to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(5), for insufficient service of process. She claims that plaintiff never completed "nail and mail" service because she was never mailed a copy of the summons and complaint, and that the address listed on the certificate of service is incorrect.
When a defendant brings a motion pursuant to Rule 12(b)(5), the "plaintiff bears the burden of establishing that service was sufficient." Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d. Cir. 2005). The Federal Rules of Civil Procedure provide that service of process on an individual within a judicial district of the United States may be completed by "following the state law for serving summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed.R.Civ.P. 4(e)(1). Under New York law, service of process is controlled by Section 308 of the Civil Procedure Law and Rules ("CPLR"), which states that individuals may be served by: (1) delivering the summons to the person to be served; or (2) delivering the summons "to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode of the person to be served", along with mailing the summons to the person's last known address. See NY CPLR §§308(1) and (2). When service of process cannot be effectuated in either manner set forth in Section 308(1) and (2) by due diligence, service may be accomplished by "affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by... mailing the summons to such person at his or her last known residence." See NY CPLR §308(4).
Here, plaintiff has satisfied its burden to demonstrate that service was properly made under Federal Rule of Civil Procedure 4(e)(1) and Section 308(4) of the CPLR. The certificate of service filed by plaintiff contains a sworn affidavit by the process server indicating that he attempted to personally serve defendant on three separate occasions with due diligence. The date and time of each attempt at personal service is listed. The affidavit states that after such attempts proved unsuccessful, the process server affixed a true copy of the summons and complaint to the door of plaintiff's last known address, which is listed, and mailed a true copy of the same to plaintiff's last known address.
The process server's affidavit demonstrates proper service pursuant to Section 308(4) of the CPLR. "A process server's affidavit of service establishes a prima facie case of the account of the method of service, and thus, in the absence of contrary facts, [courts] presume that [the defendant] was properly served with the complaint." Old Republic Ins. Co. v. Pacific Fin Servs. of Am., 301 F.3d 54, 57 (2d. Cir. 2002); see The Reynolds Corp. v. National Operator Services, Inc., 208 F.R.D. 50 (WDNY 2002) (an affidavit of service constitutes prima facie evidence of effective service).
In contrast, defendant's motion to dismiss contains a conclusory assertion that she was never served a copy of the summons and complaint by mail. However, there has been no sworn statement submitted contradicting the process server's affidavit, nor has defendant set forth any facts supporting her claim that service was not made. Thus, defendant's unsupported and uncorroborated statement is insufficient to overcome the sworn affidavit relied upon by plaintiff. See Griffin-Nolan v. Providence Washington Ins. Co., 2005 U.S. Dist. LEXIS 12902 (NDNY 2005) (noting that "common sense dictates[s] that a motion to dismiss for failure to serve summonses requires a supporting affidavit" and denying a motion to dismiss pursuant to Rule 12(b)(5) for failure to include such an affidavit).
Lastly, the certificate of service lists defendant's address as "318 Broad Street, Apt. 1415." Defendant states that the address is incorrect because she lives in a single family home rather than an apartment. However, defendant does not contest that her correct address is 318 Broad Street, which, according to the sworn statement of the process server, is where the summons and complaint was affixed and mailed. Defendant also does not contest that a copy of the summons and complaint was affixed to the door of her residence at 318 ...