United States District Court, W.D. New York
DECISION AND ORDER
CHARLES J. SIRAGUSA United States District Judge.
a former employee of the United States Postal Service,
commenced this action alleging employment discrimination,
retaliation and due process violations. Now before the Court
is Defendant's motion to dismiss for improper service and
failure to state a claim. The application is granted in part
and denied in part.
January 13, 2007, the United States Postal Service terminated
Plaintiff's employment. Plaintiff thereafter filed an
employment discrimination complaint with the United States
Equal Employment Opportunity Commission Office of Federal
Operations (“EEOC”), alleging that she was
terminated because of her race (African American), sex
(female) and disability (injuries to knee, neck and back),
and in retaliation for a prior discrimination complaint. The
EEOC denied Plaintiff's complaint, and on May 20, 2014,
Plaintiff filed a motion for reconsideration. On January 15,
2015, the EEOC denied Plaintiff's motion for
April 16, 2015, Plaintiff commenced this action, proceeding
pro se. Plaintiff's Complaint (Docket No. [#1])
purports to state four causes of action: 1) termination due
to discrimination; 2) termination based upon wrong standard
of law; 3) retaliation; and 4) denial of due process by the
EEOC. As to the fourth cause of action, the Complaint
contends that the EEOC denied Plaintiff “due process of
law” when it denied her motion for reconsideration,
because it prevented her from submitting a reply to the
Postal Service's opposition to the motion for
reconsideration. The Complaint [#1] indicates that Plaintiff
wanted to file such a reply because the Postal Service's
response “quoted law that did not exist and totally
misrepresented the facts.”
with the Complaint, Plaintiff submitted a motion for leave to
proceed in forma pauperis, which the Court denied.
Thereafter, on June 16, 2015, Plaintiff paid the filing fee.
According to the Court's docket sheet, it was not until
December 7, 2015, that the Court issued a summons and mailed
it to Plaintiff. Approximately six months later, the Court
determined that there had been no docket activity since
December 7, 2015. On May 31, 2016, the Court issued an Order
to Show Cause [#4], as to why the action should not be
dismissed for failure to prosecute. On June 14, 2016,
Plaintiff responded to the Order to Show Cause, and indicated
that she had never received the summons mailed by the Court.
On June 23, 2016, the Court accepted Plaintiff's
explanation and directed the Clerk of the Court to reissue a
summons to Plaintiff.
24, 2016, the Clerk of the Court mailed a new summons to
Plaintiff. Less than ninety days thereafter, on September 19,
2016, Plaintiff filed a proof of service, indicating that she
had served Defendant. However, the affidavit [#8] that
Plaintiff filed indicated only that on September 19, 2016,
her process server the summons to the office of the United
States Attorney in Rochester.
September 15, 2016, Defendant filed the subject motion [#7]
to dismiss the Complaint in its entirety for improper
service, pursuant to Federal Rule of Civil Procedure
(“Fed.R.Civ.P.”) 4(i), 4(m) and 12(b)(5), or, in
the alternative, to dismiss the fourth cause of action for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
Defendant further contends that the proper defendant in this
action is the current Postmaster General, Megan J. Brennan
October 6, 2016, Plaintiff filed a response [#9], opposing
Defendant's motion to dismiss in its entirety, though not
opposing Defendant's request to substitute Brennan as the
proper defendant. In opposing Defendant's motion to
dismiss for improper service, Plaintiff re-submitted the
aforementioned affidavit of service, along with a postal
receipt, purporting to show that, on September 19, 2016, she
had also mailed a copy of the summons and complaint to the
Postmaster General in Washington, D.C., by certified mail.
to Dismiss for Untimely and Improper Service
maintains that the Complaint should be dismissed for
“insufficient service of process, ” pursuant to
Fed.R.Civ.P. 12(b)(5). “On a Rule 12(b)(5) motion to
dismiss, the plaintiff bears the burden of establishing that
service was sufficient.” Khan v. Khan, No.
07-3709-cv, 360 F.App'x 202, 203 (2d Cir. Jan. 12, 2010).
“[I]n considering a motion to dismiss pursuant to
12(b)(5) for insufficiency of process, a Court must look to
matters outside the complaint to determine whether it has
jurisdiction.” Darden v. DaimlerChrysler N. Am.
Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y. 2002).
contends that service was untimely, because it was not
completed within ninety days after the complaint was filed,
as required by Fed.R.Civ.P. 4(m). Defendant correctly points
out that Plaintiff did not attempt to serve the summons until
nine months after the Court first issued the summons.
However, Defendant ignores the fact that in the interim, the
Court issued the Order to Show Cause, Plaintiff responded,
and the Court directed the Clerk to issue a new summons.
See, Order [#6]. By issuing that Order, the Court
accepted Plaintiff's explanation that she had never
received the first summons that was mailed to her in December
2015. Accordingly, the Court does not hold Plaintiff
responsible for the delay between December 7, 2015, when the
summons was first issued, and June 24, 2016, when the summons
was re-issued. Consequently, since Defendant's motion
under Rule 4(m) is based on that period of delay, the Court
will deny that aspect of the motion.
Defendant contends that Plaintiff failed to make proper
service under Fed.R.Civ.P. 4(i), which governs service on the
United States and its agencies, corporations, officers or
employees. Plaintiff is suing the Postmaster General in his