The opinion of the court was delivered by: Janet Bond Arterton, U.S.D.J.
RULING ON DEFENDANTS' MOTION TO DISMISS [Doc. # 39]
Plaintiffs Trinene Davis, Shirley Weaver, Regina Moore, and Michael Ayers (collectively, "Plaintiffs"), all of whom were employed at the Connecticut Juvenile Training School, brought suit against Defendants, all of them employees of the Connecticut Department of Children and Families ("DCF"), alleging that Defendants subjected them to racially discriminatory treatment in discipline, supervision, and promotion, as well as a racially discriminatory hostile work environment, in violation of Title VII and 42 U.S.C. § 1983 and, through that statute, the United States Constitution. Defendants have moved to dismiss the action under Federal Rule of Civil Procedure 12(b)(5), for insufficiency of service of process, and 12(b)(2), for lack of personal jurisdiction.
Plaintiffs brought suit on March 29, 2007, and filed an amended complaint on January 30, 2008, suing Defendants "as individuals acting under the color of law." (Am. Compl. [Doc. # 29] ¶ 4.)
Each Defendant avers that he or she "was never personally served with a copy of the Summons and Complaint . . . either in hand or at [his or her] abode," that he or she "never received any summons or complaint in the mail with a request to waive service," and that he or she "never designated the State of Connecticut, Office of the Attorney General or Gregory T. D'Auria to be my agent to accept service of process for me in my individual capacity." (Mara Aff. at ¶¶ 3--5; Rayford Aff. at ¶¶ 3--5; Perez Aff. at ¶¶ 3--5; Gavey Aff. at ¶¶ 3--5; Flower Aff. at ¶¶ 3--5.) Mr. D'Auria confirmed that he is the designee within the Office of the Attorney General to receive service of process for employees of the State of Connecticut "sued in their official capacities," but that "[t]he Attorney General's Office does not accept service for state employees sued in their individual capacities, unless authorized by the employee," and that none of the Defendants authorized him "to accept service for them in their individual capacities." (D'Auria Aff. at ¶ 3, 5 (emphases added).)
Despite the fact that Defendants never authorized the Office of the Attorney General to accept service on their behalf in their individual capacities, a Connecticut State Marshal left the summons and complaint with Mr. D'Auria at the Office of the Attorney General for each Defendant on April 4, 2007. (See Summons Returned Executed on each Defendant [Docs. ## 12--16]; D'Auria Aff. at ¶ 4.) The summonses were returned executed and were docketed on May 18, 2007, approximately two months prior to the expiration of the 120-day period for service of process specified in Federal Rule of Civil Procedure 4(m) following filing of the complaint.*fn1 One week later, on May 25, 2007, counsel for all parties signed and submitted a joint Rule 26(f) Report [Doc. # 11]. That Report stated explicitly that "[p]ersonal jurisdiction is contested" (Rule 26(f) Report at ¶ II.B), and, under "Defenses and other claims . . . of Defendant(s)," Defendants contended that "Plaintiffs have failed to serve the named defendants; therefore, there is no in personam jurisdiction" (Id. at ¶ III.B).
Rule 4(e) describes how an "Individual Within a Judicial District of the United States" may be served. Specifically, that Rule provides that service of a summons is properly effectuated by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode . . . ; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e) (paragraph breaks omitted).
The parties agree on the applicability of Rule 4(e)(1). They dispute, however, which "state law for serving a summons" applies here. Defendants cite Conn. Gen. Stat. § 52-57(a), while Plaintiffs rely on § 52-64. Plaintiffs conceded at oral argument that they have not complied with the service of process described under § 52-57(a).
Defendants also move to dismiss under Rule 12(b)(2) for lack of personal jurisdiction over them. The burden is on Plaintiffs to establish that personal jurisdiction lies. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) ("On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the ...