United States District Court, N.D. New York
Saul Ewing LLP, Elizabeth U. Witmer, Esq., of counsel, Wayne, Pennsylvania, and Stockli, Slevin and Peters, LLP, John P. Stockli, Jr., Esq., of counsel Albany, New York, and Saul Ewing LLP, Sean T. O'Neill, Esq., of counsel Philadelphia, Pennsylvania, and Hiscock & Barclay LLP, Yvonne E. Hennessey, Esq., of counsel Albany, New York, Attorneys for Plaintiff.
George M. Sydlar, Oneonta, New York, Defendant pro se.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
Plaintiff brought this condemnation action pursuant to Rule 71.1 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), relying on a certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission under the Natural Gas Act, 15 U.S.C. § 717f(h). Presently before the Court is a letter motion (Dkt. No. 26) by defendant George M. Sydlar ("Sydlar"). The Court construes Sydlar's motion as seeking reconsideration of the Court's Order (Dkt. No. 23) denying his motion (Dkt. No. 15) to dismiss the complaint for lack of personal jurisdiction. The Court grants reconsideration and, upon reconsideration, vacates the Order (Dkt. No. 23) denying dismissal, grants the motion for dismissal (Dkt. No. 15), and dismisses the complaint without prejudice for lack of personal jurisdiction.
It is within the plenary power of the Court to review its interlocutory orders to afford such relief from them as justice requires. See Wanamaker v. Columbian Rope Co., 907 F.Supp. 522, 526-527 (N.D.N.Y. 1995), aff'd 108 F.3d 462 (2d Cir. 1997). Local Rule 7.1 (g) implements this power. The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. See U.S. v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000). Ordinarily, a motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Sydlar contends that "nail and mail" service of process under section 308(4) of New York Civil Practice Law and Rules ("C.P.L.R.") at his residence at 2031 White Hill Road, Oneonta, New York, did not constitute proper service. Fed.R.Civ.P. 71.1(d)(3)(A) requires "personal service" of the notice of condemnation "in accordance with" Fed.R.Civ.P. 4. Fed.R.Civ.P. 4(e)(1) permits service by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made[.]" Plaintiff claims that it has accomplished service under New York law, specifically C.P.L.R. 308(4), which provides that where service by personal delivery under C.P.L.R. 308(1) or delivery to a suitable-age person and mailing under C.P.L.R. 308(2) "cannot be made with due diligence, " service may be made
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 either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business[.]
In its April 14, 2015 Memorandum-Decision and Order (Dkt. No. 23), the Court construed Sydlar's motion (Dkt. No. 15) challenging C.P.L.R. 308(4) service as based on two arguments: first, that affixing and mailing process to the 2031 White Hill Road residence was improper because he received mail at a post office box, not at the residence; and second, that Fed.R.Civ.P. 71.1(d)(3)(A)'s requirement of "personal service" meant "personal delivery." The Court rejected both arguments. Thereafter, by Text Order (Dkt. No. 25), the Court denied Sydlar's letter motion (Dkt. No. 24) for reconsideration.
The Court interprets Sydlar's present motion (Dkt. No. 26) as including a different argument, that is, that the process server's affidavit stating that he attempted service at the 2031 White Hill Road residence on four occasions is false. At the Court's direction, plaintiff responded to the motion (Dkt. No. 28). Plaintiff's response includes an affidavit from James Wheeler ("Wheeler"), the process server, stating as follows:
4. I am a process server and was engaged by Alexander Poole & Co., Inc. to complete service on Mr. Sydlar.
5. I made four separate attempts to personally serve Mr. Sydlar at his residence at 2031 White Hill Road, Oneonta, NY 13820 on the following dates and times:
January 7, 2015 [Wednesday] at 1:29 p.m.;
January 9, 2015 [Friday] at 7:36 a.m.;
January 12, 2015 [Monday] at 10:47 a.m.; and January 22, 2015 ...