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Mares v. United States

United States District Court, W.D. New York

June 5, 2014

PETER MARES, Plaintiff,
UNITED STATES OF AMERICA, THE UNITED STATES CUSTOM AND BORDER PROTECTION, JANET NAPOLITANO Secretary of the Department of Homeland Security, JOHN SANDWEG General Counsel of the Department of Homeland Security, ALFONSO ROBLES Chief Counsel of the Customs and Border Protection Agency, THOMAS S. WINKOWSKI, Deputy Commissioner of the Customs and Border Protection Agency, J. BELL Border Patrol Agent, Z. MEVIOR Border Patrol Agent, M. DION Border Patrol Agent, and JOHN AND JANE DOES 1-10, Defendants.

Jose Enrique Perez, Esq., Syracuse, NY, for Plaintiff.

Michael S. Cerrone, A.U.S.A., United States Attorney's Office, Federal Centre, Buffalo, NY, for Defendants.


CHARLES J. SIRAGUSA, District Judge.


This Federal Tort Claims Act case is before the Court on the government's motion to dismiss for lack of jurisdiction due to improper service of process. Motion to Dismiss, Apr. 1, 2014, ECF No. 9. For the reasons stated below, the application is granted.


The Court assumes the truth of the facts asserted in the complaint for the purposes of adjudicating this motion, and, with respect to issues concerning personal jurisdiction, matters included in the papers filed in support of, and opposition to, the pending motion to dismiss. Plaintiff alleges he is a United States Citizen who was unreasonably seized and arrested by Border Patrol Protection agents. He is suing the parties in both their official and personal capacities for constitutional claims under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), under the Federal Tort Claims Act and for common law torts of assault, false arrest, false imprisonment, negligence and intentional infliction of emotional distress. He maintains that he was targeted on April 16, 2010, based on his Hispanic appearance and while assisting the defendant officers in the questioning of a woman in front of La Casa, a home for migrant farm workers in Sodus, New York. Plaintiff was handcuffed, frisked and forced to the ground by the officers, and then released after about an hour. No charges were filed against him.


Fed. R. Civ. P. 12

Federal Rule of Civil Procedure 12(b) provides in pertinent part as follows:

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;...
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted....
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

Fed. R. Civ. P. 12(b)(1), (2), (5) & (6).

Fed. R. Civ. P. 12(b)(1)

A challenge to the Court's subject-matter jurisdiction can be based on the face of the complaint, or on facts outside the complaint. In either event, a plaintiff bears the burden of establishing, by a preponderance, that the Court has the statutory or constitutional power to adjudicate the case. Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). The Court may refer to evidence outside the pleadings. Id. at 497. "the jurisdiction of a federal court must affirmatively and distinctly appear and cannot be helped by presumptions or by argumentative inferences drawn from the pleadings." Norton v. Larney, 266 U.S. 511, 515 (1925); see also Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Norton for the same principle).

Fed. R. Civ. P. 12(b)(2)

Similar to subject matter jurisdiction, a plaintiff also bears the burden of establishing by a preponderance that the Court has personal jurisdiction over the defendants, and, again, the Court may rely on evidence outside the pleadings to make its assessment. If the Court does not conduct a "full-blown evidentiary hearing on the motion, the plaintiff need only make a prima facie showing of jurisdiction through his own affidavits and supporting materials." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).

Fed. R. Civ. P. 12(b)(5)

A defendant may move to dismiss for a plaintiff's failure to comply with Federal Rule of Civil Procedure 4's requirements for service of process. In analyzing a motion under this section, the Court must look to the service requirements of Rule 4, which in this case, are as follows:

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States 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 ...

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