United States District Court, N.D. New York
LOWELL R. SIEGEL, ESQ., OFFICE OF LOWELL R. SIEGEL, Altamont, New York, Attorneys for Plaintiff.
JAMES SEAMAN, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, The Capitol, Albany, New York, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff, Alelie Serrano, commenced this action against her employer, the New York State Department of Environmental Conservation ("DEC"), and various other DEC employees on October 24, 2012. See Dkt. No. 1. After being terminated from her position on January 25, 2013, Plaintiff filed an amended complaint on February 13, 2013. See Dkt. No. 9. Defendants filed a motion to dismiss the amended complaint, arguing several grounds for dismissal, including for lack of personal jurisdiction over Defendant Major Steven Gerould due to insufficient service of process. See Dkt. No. 11-13 at 26. On December 20, 2013, the Court issued a Memorandum-Decision and Order agreeing with Defendants that Plaintiff had failed to effect proper service upon Defendant Gerould, and directed Plaintiff to properly serve him within thirty days. See Dkt. No. 17. The Court expressly warned that, if Plaintiff failed to effect proper service within the allotted thirty days, Defendant Gerould would be dismissed from this action without further order of the Court. See id. at 34. Currently before the Court is Defendant Gerould's motion to dismiss the amended complaint for lack of personal jurisdiction, in which he asserts that Plaintiff still failed to effect proper service.
A. Plaintiff's Allegations and Initial Service Upon Defendant Gerould
Plaintiff was employed at the DEC as a dispatcher from October 2006 until January 2013. See Dkt. No. 9 at 4. As the only dispatcher at the DEC of Puerto Rican/Hispanic descent during that time period, the main reason Plaintiff was hired was for her fluency in Spanish. See id. at 5. From October 2006 until February 2010, Plaintiff worked at the Ray Brook office, and then was transferred to Albany. See id. at 4. Defendant Gerould supervised the Central Dispatch Unit in the Central Office in Albany from May 2007 to April 2011, and had no supervisory control over the Central Dispatch Unit after his relocation in April 2011. See Dkt. No. 11-12 at 1.
On March 4, 2008, Plaintiff filed a charge of discrimination with the Affirmative Action Office of the DEC. See Dkt. No. 11-5 at 7. The Affirmative Action Office determined that Plaintiff had a valid claim of discrimination, and recommended remedial action to ensure an end to the discriminatory behavior. See id. at 8-9. Subsequently, on August 27, 2008 Plaintiff filed a complaint with the New York State Division of Human Rights ("DHR"), alleging retaliation for having filed an Affirmative Action complaint. See id. at 1. Then, on October 8, 2008, Plaintiff filed another charge with the DHR alleging discrimination and harassment. See Dkt. No. 11-6 at 1. On March 23, 2009, the DHR released a determination in which it said, "there is probable cause that Complainant may have been subjected to discriminatory treatment, including retaliation, and said treatment may be ongoing." See Dkt. No. 11-7 at 6. On March 30, 2010, Plaintiff filed another charge of discrimination with the DHR, see Dkt. No. 11-10 at 1, but the DHR found no probable cause of discrimination because the allegations were already litigated during the December 2009 Division Hearing. See Dkt. No. 11-11 at 2.
Finally, in May 2012, Plaintiff filed a charge of discrimination and retaliation based on her race/national origin with the Equal Employment Opportunity Commission ("EEOC"). See Dkt. No. 11-3 at 2. The EEOC declared that it was unlikely that it would find a violation of law because "most of Plaintiff's allegations are untimely (beyond 300 days) or have already been investigated by the NYSDHR." See Dkt. No. 11-2 at 2. On July 26, 2012, the EEOC issued a right to sue letter, allowing Plaintiff ninety days to file a suit against the DEC. See id. at 3. Plaintiff commenced this action on the ninetieth day, October 24, 2012. See Dkt. No. 1. On January 4, 2013, Plaintiff filed another hostile work environment and discrimination complaint with the Affirmative Action Office of the DEC. See Dkt. No. 11-13 at 6. Shortly after, on January 25, 2013, Plaintiff was terminated from her position for "persistent and unfounded complaints that have disrupted the workplace, conduct that undermined the mission of the unit, insubordination, and time and attendance concerns." See Dkt. No. 15-3 at 2.
Plaintiff alleges that Defendant Gerould contributed to the hostile work environment by "engaging in improper conduct himself[, ]... failing to take action to remedy the situation, ... [and] minimizing the Affirmative Action Bureau's determination that Plaintiff was subjected to a hostile work environment." See Dkt. No. 9 at ¶¶ 38-39. Plaintiff initially attempted to serve Defendant Gerould at the Albany Office on November 16, 2012; service was accepted on Defendant Gerould's behalf by Jonathan Binder, a senior attorney with the DEC. See Dkt. No. 5 at 6. However, Defendant Gerould argued that the Albany Office was no longer his "actual place of business, " as required by Rule 308 of the New York Civil Practice Law and Rules ("CPLR") in order to effect service, because he was transferred to the Avon Office in April 2011. See Dkt. No. 11-12 at ¶ 2; N.Y. C.P.L.R. § 308(2) (McKinney 2013). On May 28, 2013, Plaintiff attempted to personally serve Defendant Gerould at his residence with a summons and the amended complaint. See Dkt. No. 15-4.
B. The Court's December 20, 2013 Memorandum-Decision and Order
On December 20, 2013, the Court ruled on Defendant Gerould's motion to dismiss for lack of personal jurisdiction. See Dkt. No. 17. As stated above, Plaintiff attempted to serve Defendant Gerould at the Albany Office in November 2012, but he had transferred out of that office in April 2011. Therefore, the Court found that, because the Albany Office was no longer Defendant Gerould's "actual place of business, " service was ineffective because N.Y. C.P.L.R. § 308(6) defines "actual place of business" as "any location that the defendant, through regular solicitation or advertisement, has held out as its place of business." In addition, Plaintiff's attempted service of a summons and the amended complaint on May 28, 2013; was deemed improper because service had not occurred within 120 days of filing the complaint, as required by Federal Rule of Civil Procedure 4(m). See Dkt. No. 15-4; Dkt. No. 17 at 32 n.6. The Court granted Plaintiff an extension to effect proper service of process upon Defendant Gerould, and required that service be completed within thirty (30) days of the filing ...