Lab Crafters, Inc. v. Flow Safe, Inc.

233 F.R.D. 282, 2005 U.S. Dist. LEXIS 41894, 2005 WL 1285714
CourtDistrict Court, E.D. New York
DecidedMay 5, 2005
DocketNo. 03-4025 (SJF)(WLW)
StatusPublished
Cited by7 cases

This text of 233 F.R.D. 282 (Lab Crafters, Inc. v. Flow Safe, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lab Crafters, Inc. v. Flow Safe, Inc., 233 F.R.D. 282, 2005 U.S. Dist. LEXIS 41894, 2005 WL 1285714 (E.D.N.Y. 2005).

Opinion

OPINION & ORDER

FEUERSTEIN, District Judge.

I. Introduction

Defendants Richard Klumb, Gary Cirineione and Configuration Management Consultants (collectively, the “Moving Defendants”) bring this motion to dismiss pursuant to Fed.R.Civ.P. 4(m), seeking dismissal on the ground that service was improper. For the reasons set forth below, the Moving Defendants’ motion to dismiss is granted, and the action is dismissed without prejudice as against the Moving Defendants.

II. Background

Plaintiff (“Lab Crafters” or “Plaintiff’) commenced this action in New York State Supreme Court, Suffolk County, against defendant Flow Safe, Inc. (“Flow Safe”) on June 10, 2003 seeking damages and a permanent injunction for Flow Safe’s alleged breach of a contract governing the manufacture and sale of bi-stable vortex fume hoods. The action was removed to federal court on August 18, 2003. Pursuant to a stipulation, Plaintiff filed an amended complaint on March 11, 2004 (the “Amended Complaint”), in which it modified the complaint as to Flow Safe and asserted claims for the first time against a number of additional defendants, including the Moving Defendants.1 It attempted to serve the Moving Defendants on March 24, 2004.

The Moving Defendants assert that they were not properly served because the March 24, 2004 service was served at the wrong address and upon an individual not affiliated with or known to any of the Moving Defendants. Plaintiff claims that the March 24, 2004 service (the “March Service”) was proper and, in any event, that any defect was cured by its subsequent service on September 9, 2004 (the “September Service”).

III. Analysis

Fed.R.Civ.P. 4(m) states in relevant part that

[284]*284[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court ... shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Under this rule a summons and complaint must be served upon a defendant no later than 120 days after the filing of the complaint. Fed.R.Civ.P. 4(m); see also Henderson v. United States, 517 U.S. 654, 663, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). The Amended Complaint was filed on March 11, 2004. (Am. Cmplt; Cert, of Robert J. Basil 113). Pursuant to Fed.R.Civ.P. 6(a), the last date on which service could be properly made was July 19, 2004.

The Federal Rules of Civil Procedure place the responsibility for proper service of a summons and complaint, and the burden of demonstrating proper service, squarely upon the plaintiff. Fed.R.Civ.P. 4(c)(1); Preston v. New York, 223 F.Supp.2d 452, 466 (S.D.N.Y.2002); Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y.1997), aff'd, 173 F.3d 844 (2d Cir. 1999). Absent such a showing, the Court has discretion to either dismiss the action without prejudice, or extend the deadline for service “for an appropriate period.” Fed. R.Civ.P. 4(m); see also Advisory Committee Notes to Fed.R.Civ.P. 4(m); Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 506 (S.D.N.Y.1999).

Under Fed.R.Civ.P. 4(e), there are three methods by which proper service can be effected: (1) pursuant to the law of the state in which the district court is located, in this instance New York, Fed.R.Civ.P. 4(e)(1); (2) pursuant to the law in which service is effected, in this instance New Jersey, id.; or (3) by

delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

Fed.R.Civ.P. 4(e)(2). The process server, Alfonso Biscardi, delivered a copy of the summons and Amended Complaint to an individual identified as Joe Heiberg at 16 Watchung Avenue in Chatham, New Jersey. (Aff. in Opp., Ex. A). According to the Moving Defendants, however, 16 Watchung Avenue houses an automotive repair facility with which they are not in any way affiliated. (Cert. of Richard Klumb at ¶ 6). The Moving Defendants further claim that they do not know any individual named Joe Heiberg, and “no person fitting [his] description is connected in any way to CMC.” (Id. at ¶ 5). Finally, the Moving Defendants state that “[t]he first that anyone at CMC received a copy of any court papers related to this case was in September 2004.” (Id.)2 Plaintiff does not refute these claims. Thus, the March Service was clearly defective under New York law, New Jersey law, and Fed. •R.Civ.P. 4(e)(2), and therefore improper under Fed R. Civ. P. 4. See CPLR 308 and 311; N.J. Court Rules, 1969 R. 4:4-4(a)(l) (2005); and Fed.R.Civ.P. 4(e)(2).

Nonetheless and notwithstanding the impropriety of the March Service, Plaintiff can avoid dismissal if it can demonstrate good cause for its failure to effect proper service. Fed.R.Civ.P. 4(m); see also Blessinger v. United States, 174 F.R.D. 29, 30 (E.D.N.Y.1997); Myers v. The Sec’y of the Dep’t of the Treasury, 173 F.R.D. 44, 46 (E.D.N.Y.1997). Two factors are considered to determine whether good cause exists: (1) the reasonableness and diligence of Plaintiffs efforts to serve, and (2) the prejudice to the Moving Defendants from the delay. Blessinger, 174 F.R.D. at 31. To satisfy the first prong, Plaintiff must show more than mere attorney “inadvertence, neglect, or mistake.” [285]*285Myers, 173 F.R.D. at 47; see also Eastern Refractories Co., Inc., 187 F.R.D. at 505 (“[a]n attorney’s inadvertence, neglect, mistake or misplaced reliance does not constitute good cause”) (quotations and citations omitted).

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233 F.R.D. 282, 2005 U.S. Dist. LEXIS 41894, 2005 WL 1285714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lab-crafters-inc-v-flow-safe-inc-nyed-2005.