Appeal from a judgment entered in the United States District Court for the Southern District of New York, Lawrence W. Pierce, District Judge, dismissing the complaint for failure to state a claim and for insufficiency of service of process.
Before Kaufman, Chief Judge, Smith and Van Graafeiland, Circuit Judges.
Walter Martin was appointed Acting Director of the Manhattan Development Center (MDC) in 1974 by Dr. Stuart Keill, Regional Director of the New York State Department of Mental Hygiene. Martin, who is black, took disability leave from June 1975 to May 1976, and upon his return to work was appointed Chief of Treatment Services at Willowbrook, a position he still holds.
In the fall of 1975, while on leave from his position at the MDC, Martin filed an employment discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., against Keill and the Department of Mental Hygiene. Martin's complaint stated only that the defendants had discriminated against him on the basis of race between August 1974 and June 1975 by denying him the authority, salary, and privileges commensurate with his position.*fn1 He also alleged that the discrimination was continuing, and accordingly sought injunctive relief as well as money damages.
The defendants moved to dismiss the complaint against the Department of Mental Hygiene for failure to state a claim under Fed.R.Civ.P. 12(b)(6). They also moved pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(5) to dismiss the complaint against Keill on the grounds that the district court lacked personal jurisdiction, and that Keill had never been served with the summons and complaint. Judge Pierce granted these motions, and this appeal followed.
It is well settled in this Circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6). Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 703 (2d Cir.) (Per curiam ), Cert. denied, 409 U.S. 883, 93 S. Ct. 173, 34 L. Ed. 2d 139 (1972). In Avins v. Mangum, 450 F.2d 932 (2d Cir. 1971), for example, we ruled that the plaintiff's allegation that a law school had failed to hire him because of his political beliefs was wholly conclusory. Similarly, we have held that a mere statement that plaintiff was dismissed from his job because of his race failed to state a claim. Birnbaum v. Trussell, 347 F.2d 86 (2d Cir. 1966). Since Martin has alleged only that he was denied the perquisites of his position because of his race, his suit falls squarely within the rule established in this line of cases. We affirm Judge Pierce's order dismissing the complaint against the Department for failure to state a claim, without prejudice to Martin's right to file an amended complaint.*fn2
The parties agree that Dr. Keill, who is no longer an employee of the Department, has never been served with the summons and complaint as Fed.R.Civ.P. 4 requires. Martin contends, however, that Dr. Keill had actual notice of the suit, and that counsel for the defendants refused to provide him with Dr. Keill's address. He also maintains that because Keill agreed to be represented by the State Attorney General, he has waived the right to demand compliance with Rule 4. We find this argument to be meritless.
Absent a waiver, Rule 4 mandates that the defendant be served with the summons and complaint personally, or in accordance with one of several prescribed alternatives. A showing that the defendant has had actual notice of the lawsuit is not sufficient to bar a motion to dismiss under Rule 12(b)(2). See Di Leo v. Shin Shu, 30 F.R.D. 56 (S.D.N.Y.1961); 2 Moore's Federal Practice P 4.11(1), at 4-115 to 4-116 (2d ed. 1978).
Nor can Martin plausibly contend that Dr. Keill waived this requirement and submitted to the jurisdiction of the district court, merely because Keill allowed the Attorney General to raise in that forum the defenses of lack of personal jurisdiction and insufficiency of service of process. Rule 12(b) was designed to allow a moving party to challenge the court's jurisdiction over his person or the insufficiency of service of process without incurring the very consequence Martin seeks to impose on Keill here. See Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 490 (5th Cir. 1974); Lynn v. Cohen, 359 F. Supp. 565, 566-67 (S.D.N.Y.1973); 5 Wright & Miller, Federal Practice & Procedure § 1344 (1969). Since Keill invoked these defenses in timely fashion, and the parties agree that he was never served, Judge Pierce correctly dismissed the complaint against him.*fn3
Accordingly, the judgment of the district court is affirmed.