Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robinson v. The City of Buffalo

United States District Court, W.D. New York

May 12, 2017

ALICIA ROBINSON, Plaintiff,
v.
THE CITY OF BUFFALO, THE CITY OF BUFFALO POLICE DEPARTMENT, DANIEL DERENDA, COMMISSIONER OF THE CITY OF BUFFALO POLICE DEPARTMENT, BUFFALO POLICE NARCOTICS LIEUTENANT PAUL DELANO, BUFFALO POLICE NARCOTICS DETECTIVE PATRICK O'ROURKE, Former BUFFALO POLICE NARCOTICS OFFICER DETECTIVE RAY KRUG, LIEUTENANT NORMAN G HARTMAN OF THE INTERNAL AFFAIRS DIVISION OF THE BUFFALO POLICE DEPARTMENT, THE CITY OF LACKAWANNA, LIEUTENANT AARON BRENNAN OF THE CITY OF LACKAWANNA POLICE DEPARTMENT, THE COUNTY OF ERIE, ERIE COUNTY SHERIFF TIMOTHY HOWARD, and to this point at least ONE OFFICER JOHN DOE OF THE CITY OF THE BUFFALO POLICE DEPARTMENT, and ONE OFFICER JOHN DOE OF THE ERIE COUNTY SHERIFF'S DEPARTMENT, Defendants. v.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         INTRODUCTION

         Represented by counsel, Alicia Robinson (“Robinson” or “Plaintiff”) instituted this action pursuant to 42 U.S.C. § 1983 against the named defendants, alleging violations of rights under the United States Constitution and New York State law. In particular, Plaintiff alleges that Lieutenant Aaron Brennan of the City of Lackawanna Police Department illegally procured a search warrant that was unlawfully executed by officers of the City of Buffalo Police Department at her home on August 29, 2013. Plaintiff further states that during the execution of the warrant, former BPD Narcotics Officer Ray Krug (“Krug”) unjustifiably and without provocation fatally shot one of her dogs, Sarabi, a two-year-old female Rhodesian Ridgeback. Plaintiff asserts that the second shot fired by Krug, which resulted in Sarabi's death, diffused shotgun pellets that struck Plaintiff in the left knee. Following her arrest and transport to the Erie County Holding Center, Plaintiff alleges that Erie County Sheriff Timothy B. Howard (“Sheriff Howard”) and the “John Doe” City of Buffalo Police Department officer delayed transferring her to the Erie County Medical Center for treatment of her alleged injuries.

         Presently before the Court is the Motion for Judgment on the Pleadings (Dkt #18) by defendants the County of Erie (“Erie County”), Sheriff Howard, and “One Officer John Doe of the Erie County Sheriff's Department” (collectively, “the County Defendants”). The County Defendants seek an order pursuant to, inter alia, Rules 4(m) and 12(c), [1] dismissing the complaint as against the County Defendants with prejudice, due to Plaintiff's failure to timely effect service of legally sufficient process in accordance with the requirements of Rules 4(a), 4(c)(1), 4(e), and 4(m) prior to the expiration of the applicable three-year statute of limitations; and due to Plaintiff's failure to demonstrate good cause for such failure. (See Dkt ##18 through 26).

         Also before the Court is the First Motion to Adjourn, First Motion to Dismiss for Lack of Jurisdiction Dismissing Plaintiff's Complaint with Prejudice, and First Motion for Judgment on the Pleadings Dismissing Plaintiff's Complaint with Prejudice (Dkt #29) by defendants Paul Delano, Daniel Derenda, Norman G. Hartman, Ray Krug, Patrick O'Rourke, “One Officer John Doe of the City of Buffalo Police Department, ” The City of Buffalo (“the City of Buffalo”), and the BPD (collectively, “the City Defendants”) seeking an order and Judgment pursuant to Rules 4(m) and/or 12(b)(2), 12(b)(4), 12(b)(5), 12(c) and/or 12(h)(3) of the Federal Rules of Civil Procedure, granting judgment on the pleadings dismissing the Complaint as against the City Defendants, with prejudice, upon the grounds of insufficient process, insufficient service of process, and lack of personal jurisdiction because Plaintiff failed to effectuate timely and proper service of legally sufficient process upon any of them in accordance with the requirements of Rules 4(a), 4(c)(1), 4(e), and 4(m), and the statute of limitations has expired. (See Dkt ##29-1 through 29-10).[2]

         Plaintiff filed a Response (Dkt #31) and a Memorandum of Law in Opposition (Dkt ##33-1 through 33-8) to the County Defendants' motion.

         The County Defendants filed a Reply Memorandum of Law (Dkt #42), a several Reply Affidavits (Dkt ##37 through 41). The City Defendants filed a Reply Memorandum of Law (Dkt #43).

         The motions have been fully submitted on the papers. For the reasons discussed below, the Court grants the motions by the County Defendants and the City Defendants and dismisses the Complaint with prejudice.

         BACKGROUND

         On May 29, 2016, Plaintiff commenced this action by filing her Complaint (Dkt #1). On May 31, 2016, the Clerk of Court of the United States District Court for the Western District of New York issued summonses of the same date as to all of the named defendants (See Dkt ##2-1 through 2-12).

         Also on May 31, 2016, Courtney Jakubec (“Jakubec”), then employed by Plaintiff's attorney, Matthew Albert, Esq. (“Plaintiff's Attorney” or “Attorney Albert”) as his office manager, delivered copies of the Complaint, unaccompanied by any summonses, to the Erie County Department of Law, the Erie County Sheriff's Office, the City of Buffalo Law Department and the BPD.

         Several days later, on June 2, 2016, Jakubec returned to the Erie County Department of Law and delivered a summons addressed to the “County of Erie.” This summons was dated May 29, 2016, prior to the date that the Clerk of Court issued the official summonses in this matter. Also on June 2, 2016, Jakubec returned to the Erie County Sheriff's Office and delivered a summons dated May 29, 2016, and addressed to “Erie County Deputy Sheriff John Doe.” However, Jakubec did not deliver a summons to named defendant Sheriff Howard. Additionally, on June 2, 2016, Jakubec delivered summonses, dated May 29, 2016, to the City of Buffalo Law Department and the BPD. In addition to the incongruity regarding the dates of issuance, the summonses delivered by Jakubec on June 2, 2016, contained several other errors. Specifically, they bore the incorrect case number (1:14-cv-00342 instead of 1:16-cv-00342), did not list all of the parties, lacked the Clerk of Court's signature, and lacked the official seal of the United States District Court for the Western District of New York.

         On June 18, 2016, Plaintiff filed “Proofs of Service” signed by Jakubec and dated May 31, 2016. (Dkt #3 & #3-1 through #3-11).[3]

         On June 20, 2016, the City Defendants filed and served an answer (Dkt #7), asserting defenses of insufficient service of process, lack of personal jurisdiction, and expiration of the statute of limitations, among other defenses.

         Also on June 20, 2016, the County Defendants filed and served a notice of appearance (Dkt #4) and their Answer (Dkt #5), setting forth defenses of insufficient process, insufficient service of process, lack of personal jurisdiction, and the expiration of the statute of limitations. On July 1, 2016, the County Defendants filed and served, as of right, their Amended Answer (Dkt #8) with affirmative defenses.

         On August 30, 2016, one day after the expiration of the 90-day period under Rule 4(m), Plaintiff's Attorney caused to be delivered copies of the Court-issued summonses (Dkt ##2-9, 2-12, and 2-10, respectively), dated May 31, 2016, addressed to “County of Erie, 95 Franklin Street, Buffalo, New York 14202;” “Erie County Deputy Sheriff John Doe, 10 Delaware Avenue, Buffalo, New York 14202;” and “Erie County Sheriff Timothy Howard, 10 Delaware Avenue, Buffalo, New York 14202.” Kenneth Kirby, Esq., attorney for the County Defendants, rejected service and returned these documents to Plaintiff's Attorney.

         RULES 12(B)(2) and (5)

         I. Rule 12(b)(2)

         Rule 12(b)(2) provides that the defense of “lack of personal jurisdiction” may be asserted on motion. Fed.R.Civ.P. 12(b)(2). “On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) (citation omitted); accord, e.g., In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003). Where, as here, no discovery has occurred, a plaintiff may defeat a motion to dismiss under Rule 12(b)(2) based on “legally sufficient allegations” that the court has jurisdiction.” Id. at 566-67 (citing Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.) (“Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, see Fed.R.Civ.P. 11, legally sufficient allegations of jurisdiction.”) (emphasis supplied), cert. denied, 498 U.S. 854 (1990)).

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.