United States District Court, W.D. New York
OTU A. OBOT, Plaintiff,
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE
case is before the Court on the Defendant's motion to
dismiss for insufficient service pursuant to Federal Rule of
Civil Procedure 12(b)(5). For the reasons stated below, the
motion is granted.
February 5, 2016, the Plaintiff filed a pro se
complaint seeking equitable relief and damages based on his
allegation that the Defendant “and the agency pursuant
to a letter issued by the Department of the Treasury, Bureau
of Fiscal Service . . . institute[ed] a forced and premature
seizure and reduction of our Social Security Benefits without
any formal due process hearing and a final resolution of any
and all ongoing and outstanding litigation as required
pursuant to Federal Law 31 U.S.C. § 3716.”
Complaint ¶ 1. The Plaintiff also alleges violations of
several consumer protection laws. Id. ¶¶
months later, the Plaintiff filed a certificate of service
stating that he had served the complaint and summons on the
Clerk of this Court, as well as “Navient, P.O. Box
9460, PCA MC E2142, Wilkes-Barre, P.A. 18773-9460.”
Docket No. 2 at 1. The certificate stated that “Navient
has refused to provide the name of a person designated to
receive process. Navient has also refused to provide a street
address for service of process.” Id. (emphasis
omitted). One month after he filed his first certificate of
service, the Plaintiff filed a second certificate.
See Docket No. 3. The second certificate stated that
the Plaintiff had served the summons and complaint on the
Clerk of the Court; the same P.O. box address in
Wilkes-Barre, Pennsylvania; and an attorney in Amherst, New
three months after he filed his second certificate of
service, the Plaintiff requested that the Clerk enter default
pursuant to Federal Rule of Civil Procedure 55(a). The Clerk
refused to do so, noting that the Plaintiff had not effected
Plaintiff then sent two letters to the Court. The first
letter again stated that the Plaintiff had served the
complaint on an attorney in Amherst, New York, who, the
Plaintiff claimed, “had informed us that SallyMae Inc.
had changed its name to Navient.” Docket No. 5 at 1.
The Plaintiff argued that “[a] change of name should
not affect service. Unless there are other changes that we
have not been made aware of, there is nothing improper about
service on the attorney of record.” Id. The
Plaintiff's second letter claimed that he had now
effected proper service. Attached to that letter was a
certificate stating that the Plaintiff had once again served
the summons and complaint on the Clerk of the Court; on the
“U.S. Department of Education c/o NAVIENT, ” at
the same Wilkes-Barre address to which the Plaintiff had
previously mailed the complaint; and the United States
Attorney for the Western District of New York.
Court then entered an order directing the Clerk to not enter
default, “because the Plaintiff has not shown that he
has properly served the Defendant.” Docket No. 7. The
Court noted that the case had “been pending for nearly
six months with little progress and multiple attempts at
service.” Id. Nonetheless, because of the
Plaintiff's pro se status, “and even
though the deadline for proper service ended months ago,
pursuant to Federal Rule of Civil Procedure 4(m), the Court
sua sponte extend[ed] the time for Plaintiff to correctly
serve the Defendant by 28 days from the date of [the
days later, the Plaintiff filed yet another certificate of
service. That certificate stated that the Plaintiff had
served the summons and complaint on the “US Department
of Education C/O NAVIENT” at the Wilkes-Barre address;
the “The Civil Process Clerk” of the U.S.
Attorney for the Western District of New York; the U.S.
Department of Education, in Washington, D.C.; and the U.S.
Attorney General. Docket No. 8.
Defendant then filed the motion to dismiss for improper
service that is now before the Court.
a defendant moves to dismiss under Rule 12(b)(5), the
plaintiff bears the burden of proving adequate
service.” Dickerson v. Napolitano, 604 F.3d
732, 752 (2d Cir. 2010) (quoting Burda Media, Inc. v.
Viertel, 417 F.3d 292, 298 (2d Cir. 2005)). In this
case, the Plaintiff must therefore show that he has properly
served the Defendant- a corporation-in accordance with Rule
4(h), which governs service on corporate defendants. Rule
4(h) permits service in one of two ways: service is proper
(1) if it is made in “the manner prescribed by [state
law] for serving an individual, ” or (2) if the
plaintiff has “deliver[ed] a copy of the summons and of
the complaint to an officer, a managing or general agent, or
any other agent authorized by appointment or by law to
receive service of process.” Fed.R.Civ.P.
4(h)(1)(A)-(B). As discussed below, the Plaintiff has not met
his burden of showing that service was proper under either of
the two methods of service permitted by Rule 4(h).
Service was not proper under New York or Pennsylvania
the Plaintiff has not shown that he served the Defendant in a
manner authorized by New York law, i.e., the law of the
“state where [this Court] is located.”
Fed.R.Civ.P. 4(e)(1). New York law allows a corporation to be
served by “[p]ersonal service . . . to an officer,
director, managing or general agent, or cashier or assistant
cashier or to any other agent authorized by appointment or by
law to receive service.” N.Y. C.P.L.R. §
311(a)(1). The Plaintiff, however, has not shown that he has
done so. Likewise, the Plaintiff has not shown that he served
the Defendant in any other way authorized by New York law,
such as by serving the summons and complaint on the
Defendant's registered agent or on the New York Secretary
of State. See N.Y. C.P.L.R. §§ 306, 312-a.
See also Obot v. Citibank South Dakota, N.A., 347 F.
App'x 658, 659-60 (2d Cir. ...