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Jackson v. State of Connecticut Department of Public Health

United States District Court, D. Connecticut

June 20, 2016

BEVERLY JACKSON, personally, and in her official capacity as CEO of the American Òedicine Licensing Board, Plaintiff,
STATE OF CONNECTICUT DEPARTMENT OF PUBLIC HEALTH, Jewel Mullen, in her official capacity as Commissioner of the State of Connecticut Department of Public Health; Adrienne Anderson, in her official capacity as Investigations Supervisor of the State of Connecticut Department of Public Health and as an individual, Defendants.


          CHARLES S. HAIGHT, JR. Senior United States District Judge


         Pro se plaintiff Beverly Jackson commenced this action for declaratory judgment "for the purpose of determining a question of actual controversy between the parties of whether . . . under the Supremacy Clause of the United States Constitution a federal trademark preempts an inconsistent state statute or regulation." Doc. 1, at 3-4. She brings the action against the Connecticut State Department of Public Health (the "Department") and two of its officials, Jewel Mullen, the Commissioner, and Adrienne Anderson, the Investigations Supervisor.[1] Plaintiff alleges that a Connecticut state statute "precludes [her] from practicing her profession in violation of rights secured by the federal [C]onstitution."[2] Id., at 6. The state statute in question is Conn. Gen. Stat. § 20-9(a), which provides that "[n]o person shall, for compensation, gain or reward, received or expected, diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person, nor practice surgery, until he has obtained such a license as provided in section 20-10, and then only in the kind or branch of practice stated in such license."[3]

         Jackson, who identifies herself as an "N.D., Doctor of Òedicine, " is the licensor of the "American Òedicine Licensing Board, Inc., " a federal licensing agency organized and existing under the laws of the United States through its trademark" (Reg. No. 3, 765, 779).[4] Doc. 1, at 2. She obtained this trademark to verify her "intent to validate licensure for the Doctor of Òedicine® to provide 'alternative medical services related to the practice of functional diagnostics and natural medicine.'"[5] Id.

         Plaintiff's central claim is that the United States Patent and Trademark Office has sanctioned her practice of Òedicine and that by issuing her a trademark, the federal government preempted Connecticut's ability to regulate Òedicine, even if, as Defendants assert, "Connecticut finds that the practice of Òedicine constitutes the practice of medicine defined by the Connecticut General Statutes" without the requisite medical license. Doc. 28-1, at 2. Furthermore, in "[b]uilding off this central premise, Plaintiff also alleges that the Defendants' attempt to investigate her practices violate[s] the Lanham Act, the Sherman Act, the Dormant Commerce Clause, and the Fourteenth Amendment's freedom to contract provision." Id.

         Pending before the Court is the State Defendants' Motion to Dismiss this action pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6), Fed.R.Civ.P. See Doc. 28. First, Defendants assert that Plaintiff has failed to properly serve any of them so that the Court lacks personal jurisdiction over each and all of the Defendants, Fed.R.Civ.P. 12(b)(5). Second, Defendants argue that the Eleventh Amendment provides sovereign immunity to the Connecticut Department of Public Health, as a state entity, and to Commissioner Mullen and Investigations Supervisor Anderson, in their official capacities, to the extent that Plaintiff seeks money damages.[6] In addition, Defendants assert that Anderson is entitled to qualified immunity in her individual capacity. Finally, Defendants maintain that to the extent Plaintiff seeks prospective relief, her claims are barred because Plaintiff fails to state any plausible claims that would entitle her to relief. The Court resolves Defendants' motion to dismiss herein.


         A. Conn. Gen. Stat. § 20-9(a)

         The Connecticut General Statutes provide a comprehensive regulatory scheme overseeing the practice of medicine and surgery in Connecticut. See Conn. Gen. Stat., Ch. 368a, 370. Under these provisions, the Department of Public Health is the sole entity responsible for licensing physicians in Connecticut. See Conn. Gen. Stat. § 20-10. An individual who applies to the Department for a medical license must meet certain criteria; and no person shall practice medicine or perform surgery within the state without first obtaining such a license. Id. §§ 20-9, 20-10. Specifically, Conn. Gen. Stat. § 20-9(a) provides:

No person shall, for compensation, gain or reward, received or expected, diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person, nor practice surgery, until he has obtained such a license as provided in section 20-10, and then only in the kind or branch of practice stated in such license.

         In addition to determining whether applicants are eligible for permits, licensure, certification or registration, the Department conducts investigations into possible violations of the statutes or regulations. Conn. Gen. Stat. § 19a-14(a)(6), (a)(10).

         The Connecticut legislature created the Connecticut Medical Examining Board ("Board"), Conn. Gen. Stat. § 20-8a, which conducts the administrative hearings on charges issued by the Department. Once the Board issues a final decision, that decision may be appealed to the Connecticut Superior Court pursuant to Conn. Gen. Stat. § 4-183(a). In addition, the Board may issue an order to any person who is violating an applicable statute or regulation to immediately discontinue the violation.[7] Conn. Gen. Stat. § 19a-11. The Board, through the Office of the Attorney General, may "petition the [Connecticut] superior court . . . for the enforcement of any order issued by it and for appropriate temporary relief or a restraining order." Id.[8]

         B. Plaintiff's Allegations

         Plaintiff asserts that she is a licensee of the American Òedicine Licensing Board, Inc. ("Board").[9] Doc. 1 (Complaint), ¶ 1. She claims that this Board is "an organization authorized by the United States Patent and Trademark Office to license an individual as a Doctor of Òedicine®, Ò.D." Id. In support, she argues that this Board, a Connecticut corporation, registered a certification mark, "Doctor of Òedicine, " with the United States Patent and Trademark Office (Reg. No. 3, 765, 779).[10] Id., ¶ 2. Thereafter, the Board began issuing "Physician Licenses, " including the first such license, which she issued to herself. Id. & Ex. 2 ("Physician's License, " No. ND00001, issued 8/12/09). Plaintiff alleges that this license "verifies that Beverly Jackson, Ñ.D., is licensed nationally as a physician to diagnose, treat, prescribe and practice alternative medicine." Id. Under said license, Plaintiff began treating individuals. Id., ¶ 14 (e.g., "the case of Shaun Sloley, " whom Jackson allegedly treated "with Infoceuticals and acupressure for a mystery vomiting issue").

         Moreover, Plaintiff issued "Physician Licenses" to others to practice Òedicine, acting essentially as a parallel Board for regulating the practice of medicine in Connecticut. For example, Jackson set up the "American Òedicine Board of Examiners, " a review board established allegedly "to promote high standards of competency and to assure that the licensed professionals meet specific standards of education." Id., ¶ 11. She also created the "United States Òedicine Licensing Examination, " which allegedly administers a three-part exam to applicants for licenses. Id. According to Plaintiff, in order to become a "Doctor of Òedicine, " one must pass the exam and graduate from an institution accredited by the "American Òedicine Accreditation Board." Id. Jackson allegedly created such an "accredited" institution herself - the "American School of Òedicine, " "which was founded in 2010 to educate students in Informational Medicine related to quantum electrodynamics."[11] Id. (emphasis in original). She then established her own "Federal Department of Public Health, " designed "to investigate and handle complaints against licensed practitioners and to protect the public's health, safety and welfare." Id.

         The Connecticut Department of Public Health began investigating Jackson's Òedicine-related practices in May of 2013. Id., ¶ 18. Plaintiff claims that to initiate the investigation, the Department issued her a subpoena duces tecum on May 1, 2013, requesting medical records. Id. She also alleges that she received a "threatening letter from the Department of Health accusing her of criminal misconduct for unlicensed practice" of medicine. Id. In that letter, the Department noted that it had been informed that Plaintiff had undertaken treatment of "a patient who had been diagnosed with a brain tumor, resulting in a delay in the patient resuming treatment with her physicians at Yale-New Haven Hospital who had diagnosed the brain tumor." See Doc. 28-2 (Ex. 2). The letter also stated that "[t]his delay caused the tumor to increase in size which was detrimental to the patient and adversely affected her health."[12] Id.

         In her Complaint, Plaintiff alleges that she has been harmed by the Department's ongoing investigation, claiming that the "Department has displayed a complete disregard for Plaintiff's federal license in an attempt to impose enforcement actions." Doc. 1, ¶ 18.. Furthermore, she asserts that the Department, "by and through Defendant Adrienne Anderson, has refused to acknowledge that Plaintiff is authorized to practice Òedicine under federal authority."[13] Id. (emphasis in original).

         Plaintiff summarizes her case as "all about the Defendants refusing to acknowledge a Federally USPTO issued Certification Mark, attempting to rename it with their own definition and scope of practice, thus creating a different field by their own self imposed definition and thus making it illegal under state law as a result of their own mischaracterization of the true identity of the mark." Id., ¶19. For relief, Plaintiff requests the Court to issue a declaratory judgment that her certification mark preempts Connecticut from regulating the practice of medicine as defined by the Connecticut General Statutes. Id., ¶¶ 32- 35. She also prays for injunctive relief to prevent Defendants from enforcing Conn. Gen. Stat. § 20-9(a), which would otherwise bar her practice of Òedicine. Finally, Plaintiff seeks $27 million in punitive damages "and all other proper relief." Id., ¶ 35.

         C. Prior Similar Actions

         1. Betancur v. Florida, No. 4:06-cv-428 (RH/CWS), 2008 WL 506305 (N.D. Fla., Feb. 1, 2008), aff'd, 296 F.App'x 761, 763 (11th Cir. 2008), cert. denied, 555 U.S. 1213 (2009)

         The Court takes judicial notice that Plaintiff and one of her licensees previously litigated claims similar to those presented here in other federal courts without success. For example, Plaintiff initiated an extremely similar action against the Florida Department of Health and three state public health officials in the Northern District of Florida.[14] As in the case at bar, Plaintiff sought declaratory judgment regarding "whether or not under the Supremacy Clause . . . a federal trademark pre-empts an inconsistent state statute or regulation." See Betancur v. Florida, No. 4:06-cv-428 (RH/CWS), 2008 WL 506305, at *1 (N.D. Fla., Feb. 1, 2008), aff'd, 296 F.App'x 761, 763 (11th Cir. 2008), cert. denied, 555 U.S. 1213 (2009).

         The named plaintiff in this Florida action was "Beverly Betancur." The named plaintiff in the case at bar is "Beverly Jackson." The Connecticut defendants in the instant case say in their brief [Doc. 28-1] at 4 n.2: "Upon information and belief Beverly Betancur and Plaintiff Beverly Jackson are the same person." Plaintiff does not dispute that assertion in her submissions. Publicly available records identify a "Beverly Jackson, Age 58" as having the alias "Beverly J. Betancur." See (visited). "Henry A. Betancur, " age 55, also known as "Henry A. Betancourt, " is listed as a resident of Norwalk, CT, and related to "Beverly Bentancur" and "Beverly Jackson - 58, " (visited). The "Ancestry" website recites that "Henry A. Betancur" was married in Connecticut to "Beverly J. Jackson." See (visited).

         Recitations of relevant facts appear to refer to the conduct of the same individual. Compare the American School of Ñedicine's website (visited): "The story begins when Dr. Beverly Jackson established the American Nedicine Licensing Board in 2004 to protect the rights of professionals in the alternative medical field to allow them to practice legally throughout the 50 states" with the Eleventh Circuit's statement of background facts in the cited case: "Betancur applied to the Florida Department of Health in 2004 for a license to practice naturopathy. After the Department of Health denied Betancur's application, Betancur founded the Naturopathic National Council in Connecticut. The Council purported to be 'a national licensing agency.'"). 296 F.App'x at 762.

         In these circumstances, the Court's discussion in this Ruling accepts that, as Defendants stated on information and belief, Beverly Jackson, the Plaintiff in the case at bar, and Beverly Betancur, the plaintiff in the other cases cited in this Part, are the same person.

         In Betancur, Plaintiff had founded the "Naturopathic National Council, " a Connecticut corporation, which she alleged was a "national licensing agency."[15] 296 F.App'x at 762. The "Council" registered its name as a trademark and thereafter issued Plaintiff a document stating that she was "nationally licensed" as a "Doctor of Naturopathy, N.D."[16] Id. at 763. After the Florida Department of Public Health initiated an investigation into her activities and informed her that the practice of "naturopathy" without a state medical license was a third degree felony, she sued both that department and its various public officials, asserting that they "violated her rights under the Tenth and Fourteenth Amendments by denying her a license to practice naturopathy." Id. at 763. The defendants moved to dismiss the complaint, and the district court granted their motion. The Eleventh Circuit affirmed, holding as follows:

States retain the police power to regulate professions, such as the practice of medicine. Watson v. State of Maryland, 218 U.S. 173, 176, 30 S.Ct. 644, 646, 54 L.Ed. 987 (1910) (recognizing the authority of the states to regulate the practice of medicine). Betancur offers no rational argument that her ownership of the mark "Naturopathic National Council, Inc." preempts the authority of Florida to regulate and license the practice of naturopathy. Betancur's complaint of trademark infringement, which is based on her argument that the Council has the exclusive right to regulate the practice of naturopathy, also is meritless.

296 F.App'x at 763-64.

         Furthermore, the Eleventh Circuit found that "Betancur's complaint that Florida violated her civil rights also fail[ed]" in that the Florida state statute was "not an arbitrary or unreasonable regulation that violated Betancur's right to equal protection." Id. at 764. Finally, "because Betancur ha[d] no right under Florida law to be granted a [medical] license and ha[d] no liberty or property interest protected by due process, " her "final argument that the refusal to license naturopaths deprive[d] her of the opportunity to pursue her livelihood [did] not, as she contend[ed], implicate the Thirteenth Amendment, which prohibits forced servitude." Id.

         2. Jonson v. State of Washington, No. 2:15-cv-00501 (W.D. Wa. 2015)

         In addition, in the District of Washington, C. Hugh Jonson, one of Plaintiff's licensees of Òedicine, recently brought an action much like the one at bar; and the district court dismissed all claims with prejudice. See Jonson v. State of Washington, No. 2:15-cv-00501 (W.D. Wa. 2015), at Doc. 30 (unpublished "Order on Motion to Dismiss, " dated June 23, 2015). In that case, Jonson alleged that, as a licensee of the "American Òedicine Licensing Board, Inc., " he should be permitted to practice "Òedicine, " an "alternative health care" on Washington State residents. Id., Doc. 17 (Amended Complaint, ¶¶ 1, 10).

         Jonson asserted that the American Òedicine Licensing Board operated under the authority of the same trademark at issue in this action, which was registered on March 30, 2010 and amended on June 25, 2013. Id., ¶ 2. As in the case at bar, Jonson argued that the State regulatory agency - the Washington State Department of Health - should not be allowed to prevent him from practicing "Òedicine" under its regulatory provisions. In so doing, he claimed violations of the 10thAmendment and Supremacy Clause; the Lanham Act, 15 U.S.C. § 1125; 42 U.S.C. § 1983; the Dormant Commerce Clause; the Thirteenth Amendment; and Washington's "Health Professions Uniform Disciplinary Act" (UDA), Wash. Rev. Code 18.130, which provides that the unlicensed practice of a health profession constitutes a crime (Wash. Rev. Code § 18.130.190). The district court dismissed Jonson's action with prejudice for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P., and specified that "amendment would be futile." Doc. 30, at 4. In so ruling, the court held that "the registration of trademarks does not even arguably conflict with the state regulation of medicine." Id. at 3. Moreover, even "[i]f Plaintiff is licensed to use the mark, . . . he is not thereby licensed to practice medicine as the state defines that practice for the health and safety of its residents." Id. Finally, none of Plaintiff's "disparate constitutional claims which he claim[ed] permit him to practice 'Òedicine' . . . r[ose] to the level of plausibility." Id.

         Upon appeal, the Ninth Circuit stated that "[a] review of the record and the responses to the order to show cause indicates that the questions raised in this appeal are so insubstantial as not to require further argument." Doc. 35 ("Order of U.S.C.A.") (Case No. 15-35584) (citing United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam)). "Accordingly, [the Ninth Circuit] summarily affirm[ed] the district court's order." Id.; see also Doc. 36 ("Mandate of U.S.C.A., " dated February 18, 2016).

         D. Plaintiff's Present Legal Claims

         In the case at bar, Plaintiff pursues the following claims: violation of the Lanham Act, unfair competition pursuant to the Sherman Antitrust Act and Connecticut's Unfair Trade Practices Act, violation of her civil rights under 42 U.S.C. § 1983 (under the Fourteenth Amendment), preemption by the Supremacy Clause and federal trademark law, and violation of the Dormant Commerce Clause. The Court will summarize each claim briefly.

         1. Lanham Act

         Plaintiff attempts to frame her first claim under the Lanham Act. In general, that statute "permits one competitor to sue another for unfair competition arising from false or misleading product descriptions." POM Wonderful LLC v. Coca Cola Co., 134 S.Ct. 2228, 2230 (2014) (citing 15 U.S.C. § 1125). Plaintiff alleges that the "State of Connecticut Department of Public Health is usurping the federal authority by attempting to trade on the recognition of the distinctive mark Doctor of Òedicine in violation of Section 43(c) of the Lanham Act." Doc. 1, ¶ 20. She asserts that by issuing the trademark, the federal government established the practice of Òedicine, and the Connecticut Department of Public Health "is interfering with the [Òedicine] trademark [by] unduly burdening interstate commerce." Id., ¶ 21. Furthermore, she alleges that the Department is "blurring [the trademark's] inherent distinctiveness by recklessly superimposing their impression with the Tradename Medicine."[17] Id. In addition, Plaintiff asserts that Investigative Supervisor Anderson has violated 15 U.S.C. § 1125(a)(1)(A) by causing "trade identity confusion by attempting to overthrow the trademark Doctor of Òedicine through false and misleading representation of Plaintiff's profession."[18] Id., ¶ 27.

         2.Unfair Competition

         As to her federal claims under the Sherman Antitrust Act, 15 U.S.C. § 1, Plaintiff alleges that Defendants have impaired her ability to compete in the medical field.[19] Specifically, she alleges that Defendants have interfered with her trademark in violation of Section 1 of the Sherman Antitrust Act, thereby unreasonably restricting her trade. Doc. 1, ¶ 22. She concludes that "[s]uch restraint on trade is unconstitutional because it interferes with interstate commerce and invades the federal government's exclusive right to regulate interstate commerce."[20] Id.

         Plaintiff also claims that Defendants are violating Section 2 of the Sherman Antitrust Act with their "dangerous intent on monopolizing the health care industry through anticompetitive conduct." Id. She claims, in particular, that "Defendants are making it impossible for [her] to engage in fair competition by restricting the trademark Doctor of Nedicine®." Id Finally, Plaintiff alleges that Defendants have violated the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110b(a). That statute provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Conn. Gen. St. § 42-110b(a). "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action" to recover actual damages, punitive damages, and equitable relief Conn. Gen. Stat. § 42-110g(a). In the case at bar, Plaintiff alleges that the "State of Connecticut Department of Public Health is in violation of the rules of unfair trade practices by attempting to eliminate [its] direct competitor, thereby, preventing competition." Doc. 1, ¶ 22.

         3. Preemption Claims

         Plaintiff claims, in conclusory fashion, that Connecticut is preempted by the Supremacy Clause of the United States Constitution and by federal trademark law from regulating the practice of Òedicine.[21] Doc. 1, ¶¶ 23-26, 32. In support, she alleges that "[t]he United States Patent and Trademark Office has the Congressional power under the Commerce Clause to license Òedicine physicians." Id., ¶ 23. In addition, Plaintiff alleges that Congress, through the United States Patent and Trademark Office, has established Òedicine; and acts of Congress preempt conflicting state law. Id., ¶ 24. Plaintiff alleges that Connecticut may not, therefore, regulate Òedicine because it is already regulated by federal trademark law. Id., ¶ 26.

         4. Section 1983 (Fourteenth Amendment) Claim

         In addition, Plaintiff alleges that Defendants have violated the Fourteenth Amendment of the Constitution.[22] Doc. 1, ¶ 28. Citing this amendment, Plaintiff simply asserts that the Connecticut's Department of Public Health officials have "deprived [her of] the freedom to practice her profession for which she holds a federal license, in violation of her civil rights."[23] Id. She alleges that the "state should not be interfering with [her] occupation" because the state has "already determined that Òedicine does not pose risk of harm." Id. In short, she argues that "Defendants are invalidating [her] economic freedoms, " and in particular, impeding her "freedom of contract within state government restrictions." Id.. Plaintiff concludes that "[t]he aforementioned acts are equivalent to Constitutional Tort[s] pursuant to 42 U.S.C. § 1983 for deprivation of Plaintiff's rights under the United States Constitution." Id.

         Furthermore, Plaintiff alleges that individual defendants Mullen and Anderson violated her § 1983 rights by "acting under color of law." In particular, she alleges that Mullen unlawfully "refus[ed] to remedy the violations of Plaintiff's rights." Id. Plaintiff further asserts that both Mullen and Anderson "exceeded their statutory powers or acted unconstitutionally by attempting to overthrow the federal authority." Id. In support, Plaintiff cites the Lanham Act provision which states that the ownership of a valid registered trademark is "a complete bar to an action against that person, with respect to that mark, " brought "by another under the common law or a statute of a State." Id. (quoting 15 U.S.C. § 1125(a)(2)(6)).

         5.Dormant Commerce Clause Claim

         Finally, Plaintiff asserts a claim under the "Dormant Commerce Clause." "The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby impedes free private trade in the national marketplace." Gen. Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997) (citations, internal quotation marks, and brackets omitted). See also Selevan v. New York Thruway Auth., 584 F.3d 82, 90 (2d Cir. 2009).

         In her Complaint, Plaintiff alleges that "Defendants are in violation of the Dormant Commere Clause by attempting to usurp the licensing authority of the American Òedicine Licensing Board, Inc., thereby interfering with Plaintiff's license that is inherent to the rights under U.S. Certification Mark, Reg. No. 3, 765, 779 as authorized under Section l(a) of the Trademark Act." Doc. 1, ¶ 29. She further alleges that Defendants are preempted from investigating her Òedicine activities under the Dormant Commerce Clause.


         Defendants move to dismiss Plaintiff's action on three bases: (1) insufficiency of service of process, Fed.R.Civ.P. 12(b)(5); (2) sovereign immunity, which equates with lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1); and failure to state a claim upon which relief may be granted, Fed.R.Civ.P. 12(b)(6). The Court will examine each of these grounds for dismissal.

         A. Rule 12(b)(2) - Insufficient Service of Process as to All Defendants

         Defendants' first argument for dismissal of Plaintiff's Complaint asserts that Jackson failed to effect proper service upon Defendants and, therefore, the Court lacks personal jurisdiction over them. Specifically, Defendants claim that Plaintiff never properly served the Department, Mullen, or Anderson with the summons and complaint under Rules 4(e) or 4(j), Fed. R. Civ. P., and/or under Conn. Gen. Stat. § 52-57.

         1.Standard of Law

         In the absence of proper service, a district court lacks personal jurisdiction over those defendants not properly served. Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). In addition, "there must be a statutory basis for personal jurisdiction that renders such service of process effective." 673 F.3d at 59. "The available statutory bases in federal courts are enumerated by Federal Rule of Civil Procedure 4(k), " which provides that "[s]erving a summons . . . establishes personal jurisdiction over a defendant . . . who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Id. at 59-60 (citing Spiegel v. Schulmann, 604 F.3d 72, 76 (2d Cir. 2010) ("A district court's personal jurisdiction is determined by the law of the state in which the court is located.")). The Court must look to Connecticut law, as well as to the Federal Rules, in determining whether personal jurisdiction may be exercised with respect to Defendants.

         "Under Rule 12(b)(5), [Fed. R. Civ. P., ] a party may file a motion to dismiss due to insufficiency of service of process." Rzayeva v. United States, 492 F.Supp.2d 60, 74 (D.Conn. 2007). "A motion to dismiss pursuant to Rule 12(b)(5) must be granted if the plaintiff fails to serve a copy of the summons and complaint on the defendants pursuant to Rule 4 of the Federal Rules [of Civil Procedure], which sets forth the federal requirements for service." Id. (citing Cole v. Aetna Life & Cas., 70 F.Supp.2d 106, 110 (D.Conn.1999)). "Once validity of service has been challenged, it becomes the ...

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