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Hood v. Ascent Medical Corporation

United States District Court, S.D. New York

October 9, 2014

CIARAN HOOD, Plaintiff,
v.
ASCENT MEDICAL CORPORATION; SALALAH MEDICAL DEVICE MANUFACTURING COMPANY, SAOC; ASCENT MEDICAL TECHNOLOGY FUND II, L.P.; SALALAH MEDICAL SUPPLIES MANUFACTURING COMPANY, L.L.C.; ASCENT PRIVATE EQUITY II, L.L.C.; and PEGGY A. FARLEY, Defendants.

Eamonn S. Dornan, Esq., DORNAN AND ASSOCIATES, PLLC, Long Island City, NY, Attorneys for Plaintiff.

Gerard G. McCabe, Esq., McCABE & ASSOCIATES, New York, NY, Douglas C. Gray, Esq., MORRIS DOWNING & SHERRED LLP, Newton, NJ, Attorneys for Defendants.

OPINION

ROBERT W. SWEET, District Judge.

Defendant Peggy A. Farley ("Farley" or the "Defendant") has moved to dismiss the claims asserted against her by plaintiff Ciaran Hood ("Hood" or the "Plaintiff") pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b) (5) for failure to serve her within the time limits set forth in FRCP 4(m). Based on the conclusions set forth below, the motion is granted, and the complaint against Farley is dismissed without prejudice.

Prior Proceedings

Plaintiff by counsel sent a demand letter to Farley in July 2012 to which counsel for Farley responded. The complaint was filed on January 1, 2013 containing allegations against Delaware and Omani business entities and Farley.

On June 24, 2013, this action was dismissed for failure to prosecute, and the Plaintiff was granted 30 days to show cause why the action should be reopened. (See Dkt. No. 2.) On July 17, 2013, by an affirmation of service, the Plaintiff stated that on March 16, 2013 Defendants were served by certified mail to One Morningside Drive, Suite 1715, New York, N.Y. 10025, and, pursuant to her request, the summons and complaint was sent to Farley by e-mail. (Dkt. No. 3.)

On July 24, 2013, the Plaintiff sought another 30 days to serve, an effort terminated by a filing error. (Dkt. No. 4.) The application was renewed on April 30, 2014 and granted on June 2, 2014. (See Dkt. Nos. 9-10, 12.)

On July 9, 2014, Plaintiff filed an Affidavit of Service ("Service Affidavit") based upon Plaintiff's counsel "personally serving all of the defendants at One Morningside Heights, New York, NY, Suite 17 upon a white male Security Officer, who identified himself as Elvis. He stated that there was no one inside Suite 1725, but that he was authorized to accept service" and by mailing copies of the summons and complaint addressed to the defendants. (Gray Cert. Ex. F; see also Dkt. No. 13.)

The instant motion was submitted on September 3, 2014.

The Facts

The affidavit of Farley sets forth the following facts.

At the time of service (and for more than eleven (11) months prior) One Morningside Drive was not Farley's "dwelling, " "usual place of abode, " or "place of business." Farley is now and since 1980 has been a domiciliary of the State of New Jersey. (Farley Deel. ¶ 3.) From March 2009 to June 2013 she maintained a residential apartment, Suite 1715, in the Avalon Bay Residence located at One Morningside Drive, New York, New York. (Id. ¶ 4.) However, Farley's lease at One Morningside Drive expired on May 30, 2013, and she had vacated the building entirely by July 1, 2013. (Farley Deel. ¶ 6, Ex. A.)

As the Service Affidavit indicates on its face, service was attempted on either "Suite 17" or "Suite 1725", not on Suite 1715 (the address listed on the civil cover ...


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