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Gatson v. Donahoe

United States District Court, W.D. New York

March 31, 2017

GWENDOLYN GATSON, Plaintiff
v.
PATRICK R. DONAHOE, Postmaster General, United States Postal Service, Northeast Area Agency, Defendants

          DECISION AND ORDER

          CHARLES J. SIRAGUSA United States District Judge.

         INTRODUCTION

         Plaintiff, 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.

         BACKGROUND

         On 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 reconsideration.

         On 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.”[1]

         Along 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.

         On June 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.

         On 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 (“Brennan”).

         On 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.

         DISCUSSION

         Motion to Dismiss for Untimely and Improper Service

         Defendant 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).

         Defendant 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.

         Alternatively, 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 official ...


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