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Obot v. Navient

United States District Court, W.D. New York

January 21, 2017

OTU A. OBOT, Plaintiff,
v.
NAVIENT, Defendant.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         On 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. ¶¶ 9-10.

         Two 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 York.[1]

         Nearly 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 proper service.

         The 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.

         The 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 Court's] Order.”

         Ten 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.

         The Defendant then filed the motion to dismiss for improper service that is now before the Court.[2]

         DISCUSSION

         “[W]hen 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).

         A. Service was not proper under New York or Pennsylvania law.

         First, 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. ...


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