Opinion
Civil Action No. 02-CV-5985 (DGT).
November 17, 2004
MEMORANDUM AND ORDER
Defendant Edward A. Bogen ("defendant" or "Bogen") brings this motion pursuant to Rule 12(b)(5), Fed.R.Civ.P., to dismiss a complaint brought by plaintiff pro se Hanson Datiari ("plaintiff") for lack of personal jurisdiction. Because plaintiff has not demonstrated proper service, he is directed to serve defendant with a copy of the complaint in this action within 60 days of this order. With respect to defendant's motion to dismiss, that motion is denied.
Background
On November 7, 2002, plaintiff filed a pro se complaint against numerous defendants, including Bogen, in district court. Plaintiff attempted to effect service on Bogen by certified mail, which was signed for by defendant's wife on November 15, 2002 ("First Attempt"). See Plaintiff's Opposition to Defendant's Motion to Dismiss (Pl. Opp.) at Exhibit ("Ex.") 2A. But the summons referred to a different action with a different docket number, and the attached complaint did not name Bogen as a defendant.
The complaint was filed against, inter alia, the City of New York, the New York City Department of Social Services, the New York City Police Department, the New York Property Insurance Underwriters, Penza Affiliates Ltd., Edward A. Bogen, and Countyline Adjustment Co. The complaint alleged a conspiracy on the part of Bogen, who was plaintiff's insurance broker, and others to ensure a low payment for damages caused by a fire in plaintiff's home.
The summons and complaint, bearing docket number 02-cv-5765, named as defendants the City of New York, the New York City Environmental Control Board, the New York City Department of Sanitation, and the New York City Police Department.
Plaintiff also failed to correctly identify defendant's correct address. Instead of listing defendant's actual address on the certified mail application — 148 Hendrickson Avenue, Lynbrook, New York, 11560 — plaintiff used 146 Hendrickson Avenue. This minor error apparently did not prevent the documents from arriving at their intended destination: Carole Bogen, defendant's wife, signed for the items on November 19, 2002. Pl. Opp. at Ex. 2B. But, as explained above, the package did not contain a complaint naming Bogen as a defendant.
Plaintiff, on another occasion, also tried to serve Bogen through a process server ("Second Attempt"). In his Second Attempt, plaintiff attached the proper complaint but again incorrectly identified defendant's home address. Thus, the summons, which was executed on December 15, 2002, again lists 146 Hendrickson Avenue as the address where papers were to be served. But, unlike the First Attempt, plaintiff fails to provide any proof by way of a signed return certified mail receipt, which would demonstrate that Bogen (or someone on his behalf) actually received the materials.
If plaintiff could proffer such proof, there would be no doubt that service was proper. Under Rule 4(e), "service . . . may be effected . . . by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies therof at the individuals' dwelling house or usual place of abode with some person of suitable age and discretion then resideing therein." See also United States v. Schiener, 308 F. Supp. 1315, 1317 (S.D.N.Y. 1970) (service on defendant's wife at defendant's residence constituted valid service).
Bogen therefore claims that he was never served "with a summons and complaint naming him as a defendant," Defendant's Memorandum of Law in Support of Motion to Dismiss ("Def. Mem.") at 3, and that he only learned he was a defendant when he received a faxed copy of the actual complaint from a co-defendant. Id. During a July 29, 2003 hearing ("Hearing"), defendant's counsel made an argument to the same effect. And, finally, defendant's wife also claims she never received a summons and/or complaint naming defendant in any action. See Affidavit of Carole E. Bogen, dated November 4, 2004.
Defendant's papers filed with the court lack page numbers.
Defendant's counsel, Melissa Zoldan, told the court that defendant was "never . . . properly served." Hearing at 13. Although there was "an affidavit of service in the Court's file . . . it has the incorrect address and the only way my client has been receiving things was from fax through one of the codefendants. . . ." Id. Plaintiff responded that "papers were signed by [Bogen's] wife," id., to which Zoldan replied, "I don't know that that is his wife. There was another premises right near where he was located but that is not it." Id. at 14.
Discussion
Defendant argues that this court lacks personal jurisdiction because of improper service and, furthermore, that the applicable 120 period for service under Rule 4(m) has expired. Plaintiff believes in good faith that he properly served defendant, though based on the evidence provided, he has not properly perfected service.
Plaintiff also alleges that service was proper because Edward and Carole Bogen maintain a business partnership and that, under principles of agency and partnership law, service of either partner constitutes service upon the other. Defendant faults pro se plaintiff for confusing the marital relationship with the law of partnership. The dispositive issue is not the legal significance of Edward and Carole Bogen's relationship, but rather whether either of them signed for, or was personally served with, a valid copy of the complaint in this action.
It is well-settled that the Federal Rules of Civil Procedure grant courts discretion to extend the amount of time for service in a given action, including after the expiration of the 120-day period for service. Rule 4(m), entitled "Time Limit for Service," provides that if service is not made "within 120 days after filing the complaint, the court . . . shall dismiss the action without prejudice . . . or direct that service be effected within a specified time. . . ." Rule 4(m) (emphasis added). "The Federal Rules thus convey a clear message: Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow." Henderson v. United States, 517 U.S. 654, 663 (1996). Time can be extended even after the 120-day period has elapsed. See Turrisi v. Wechsler Krumholz, Inc., No. 87 Civ. 6791, 1988 WL 78325 (S.D.N.Y. July 13, 1988) (extending period of time for pro se plaintiff to file complaint after expiration of 120-day period); Mendez v. Elliot, 45 F.3d 75, 79 (4th Cir. 1995).
With respect to the First Attempt, service was defective because plaintiff failed to serve defendant with a copy of a complaint in the instant action. See Bramesco v. Drug Computer Consultants, 148 F.R.D. 690, 691 (S.D.N.Y. 1993) (requiring plaintiff to "serve a valid, completely filled in summons and copy of the complaint" on the defendant before proceeding with action). With respect to the Second Attempt, it is ambiguous whether service was ever properly effected on the defendant.
Defendant notes that the 120 day allotment for service of a complaint has expired and that plaintiff's ignorance of the law "does not constitute good cause." Def. Mem. at 4. But defendant provides no sufficient reason — and this court is unaware of any — to deny plaintiff the ability to perfect service. The fact that Plaintiff is proceeding pro se is a consideration as well. Espinoza v. United States, 52 F.3d 838, 841-42 (10th Cir. 1995). Under the circumstances, it is proper to extend the amount of time in which plaintiff may properly serve defendant with a copy of the complaint. See Rule 4(m); Henderson, 517 U.S. at 661-62 ("Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow."). Plaintiff must again try to serve defendant, at his correct address, with a correct copy of the complaint.
Moreover, defendant apparently never notified plaintiff of the defective service, which would have obviated the need to bring this motion in the first place. See Benjamin v. Grosnick, 999 F.2d 590, 591-93 (1st Cir. 1993), cert. denied, 510 U.S. 1112 (1994) (defendant's delay in notifying plaintiff of imperfect service constituted good cause).
Defendant cannot establish prejudice as a result of these errors, and dismissal with prejudice is therefore not appropriate. See Husowitz v. American Postal Workers Union, 190 F.R.D. 53, 58 (E.D.N.Y. 1999) (plaintiff's good cause established in part from lack of prejudice to defendants by plaintiff's delay).
Under Rule 4(d), plaintiff may initiate service by notifying defendant in writing that the action has commenced and request defendant to waive service of process. Rule 4(d)(2)(A). Defendant is not compelled to waive service, but will be assessed the costs of service if he refuses to do so.
Defendant asserts that "the applicable statute of limitations . . . has long expired," Def. Mem. 5, but cites neither authority nor facts to support this claim. In any event, the claim is meritless: "Once a complaint is filed, the statute of limitations is tolled unless and until the district court dismisses the action." Mann v. American Airlines, 324 F.3d 1088, 1090-91 (9th Cir. 2003). Plaintiff's improper service has no bearing on the statute of limitations within which he can bring this action.
Conclusion
Defendant's motion to dismiss is denied. Plaintiff has 60 days to perfect service in this action.