United States District Court, D. Connecticut
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.
RULING ON STATE DEFENDANTS' MOTION TO DISMISS
CHARLES S. HAIGHT, JR. Senior United States District Judge
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. Plaintiff alleges that a Connecticut
state statute "precludes [her] from practicing her
profession in violation of rights secured by the federal
[C]onstitution." 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."
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). 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.'" Id.
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.
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. 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.
Conn. Gen. Stat. § 20-9(a)
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
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. §
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. 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."
asserts that she is a licensee of the American
Òedicine Licensing Board, Inc.
("Board"). 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). 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").
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." 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.
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
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." Id. (emphasis in original).
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.
Prior Similar Actions
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
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. 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).
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 www.publicrecords360.com
(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, "
www.radaris.com (visited). The "Ancestry"
website recites that "Henry A. Betancur" was
married in Connecticut to "Beverly J. Jackson."
See www.search.ancestry.com (visited).
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.
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.
Betancur, Plaintiff had founded the
"Naturopathic National Council, " a Connecticut
corporation, which she alleged was a "national licensing
agency." 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." 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
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.
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
Jonson v. State of Washington, No. 2:15-cv-00501 (W.D.
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,
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.
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).
Plaintiff's Present Legal Claims
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
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." 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." Id., ¶ 27.
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. 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." Id.
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.
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. 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.
Section 1983 (Fourteenth Amendment) Claim
addition, Plaintiff alleges that Defendants have violated the
Fourteenth Amendment of the Constitution. 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." 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
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)).
Commerce Clause Claim
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.
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.
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
Rule 12(b)(2) - Insufficient Service of Process as to All
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. §
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.
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 ...