United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING BOAHEN AND ENVIRO
EXPRESS, INC.'S MOTION TO DISMISS [DKT. 52]
Hon.
Vanessa L. Bryant, United States District Judge.
Plaintiff
Philip Trifiletti filed this action against Defendants Enviro
Express, Inc. (“Enviro Express”) and Kwame Boahen
(“Boahen”) in the Eastern District of
Pennsylvania alleging three counts of negligence arising out
of a car accident involving Plaintiff and an Enviro Express
vehicle driven by Boahen. On April 24, 2018, this case was
transferred to the District of Connecticut. The case was
consolidated with two other actions for claims arising out of
the same accident.[1]
Defendants
now move to dismiss Trifiletti's Complaint. For the
foregoing reasons, Defendants' motion to dismiss is
GRANTED.
I.
Factual and Procedural Background
This
case involves a motor vehicle collision that occurred on
January 12, 2016, on the northbound side of Interstate-95
(“I-95”), in or around the Town of Old Lyme,
Connecticut. [No. 18-cv-00713-VLB, hereinafter “Case
713”, Dkt. 1 (Compl.) ¶ 11]. Plaintiff Philip
Trifiletti alleges that while traveling northbound on I-95,
Enviro Express's tractor trailer stopped, through its
agent, Kwame Boahen, causing Plaintiff's vehicle to
collide with Defendants'. [Case 713, Dkt. 1 ¶ 17].
Plaintiff
initiated his action in the Eastern District of Pennsylvania
on January 10, 2018, seeking damages for negligence. A
summons issued on the same day. On February 26, 2018,
Defendants moved to transfer this case to the District of
Connecticut based on convenience pursuant to 28 U.S.C.
§1404(a).[2][Case 713, Dkt. 2 (Transfer Mot.)]. On
March 28, 2018, Plaintiff moved to join Defendants'
Motion to Transfer Venue. [Case 713, Dkt. 3 (Joinder Mot.)].
And on April 24, 2018, the court granted the motion to join
and the parties' joint Motion to Transfer Venue. [Case
713, Dkt. 4 (4/24/2018 Order)].[3]
On July
30, 2018, Plaintiff filed an Affidavit of Service certifying
that Enviro Express had been served “with
Plaintiff's Complaint via certified mail on January 17,
2017.” [Dkt. 51 (Aff. of Service)]. As evidence of
service, plaintiff attached a United States Postal Service
(“USPS”) certified mail return receipt showing
the date of delivery as February 5, 2017, process addressed
to “Enviro Express Inc., ” and signed for by an
“Ernest Newtown.” Id. Neither the
Affidavit of Service nor the attached proof refer to or
include a copy of the summons. See id.
Soon
thereafter, Defendants moved to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(5), asserting insufficient
process and failure to effect proper service upon a
corporation, and pursuant to Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim upon which relief can
be granted arguing that the action was commenced after the
statute of limitations had run. [Dkt. 52-1 (Mem. in support
of Mot. to Dismiss)].
Thereafter,
Plaintiff filed an Amended Affidavit of Service representing
that the USPS delivery receipt contained a scrivener's
error, and that Enviro Express had been served via certified
mail on February 5, 2018. See [Dkt. 53 (Am. Aff. of
Service) at 1]. As evidence, Plaintiff appended an enclosure
letter along with a USPS certified mail receipt and certified
return receipt. [Dkt. 53 at 4]. The enclosure letter dated
February 2, 2018 and addressed to “Sir or Madam”
provides the recipient with a case docket number and states
“[p]lease find a true and correct copy of a United
States District Court Civil Action that was filed against you
and Kwame Boahen. Please kindly respond in accordance with
the Federal Rules of Civil Procedure.” Id.
Neither the Amended Affidavit of Service or the attached
proof refer to or include a copy of the summons. See
id. at 1-4. The Court also notes that neither
Plaintiff's Affidavit of Service nor Amended Affidavit of
Service certify that service was affected on Boahen.
See [Dkt. 51; Dkt. 53].
II.
Discussion
Defendants
move to dismiss Plaintiff Trifiletti's Complaint for
failure to effect proper service of process under Rule
12(b)(5) and for failure to state a claim under Rule
12(b)(6).
Defendants
first argue that dismissal is warranted under Rule 12(b)(5)
because Plaintiff failed to serve Defendant Boahen in any
respect and because Plaintiff's service on Defendant
Enviro Express was defective in that a summons was not served
along with the Complaint and because service was not accepted
by an authorized agent of the corporation. [Dkt. 52-1 at
4-6]. Plaintiff argues that Defendants waived this argument
by filing a motion to transfer venue prior to making their
12(b)(5) motion and further argues that he properly served
Defendant Enviro Express under Pennsylvania law such that
dismissal is improper. [Dkt. 54 (Opp'n Mot. Dismiss) at
8, 12].
Defendants
next argue that dismissal is warranted under Rule 12(b)(6)
because Plaintiff did not commence the action, as defined by
Connecticut law, before the statute of limitations had run
and thus the action is time barred. [Dkt. 52-1 at 7].
Plaintiff contends that Pennsylvania law governs commencement
of the action and that, under Pennsylvania law, he properly
filed his Complaint two days before the statute of
limitations lapsed such that his action is timely. [Dkt. 54
at 15].
The
Court first considers the 12(b)(5) argument and then takes on
the 12(b)(6) analysis.
A.
Rule 12(b)(5) - Sufficiency of Service of
Process
As a
preliminary matter, the Court rejects Plaintiff's
argument that Defendants waived their defective service
argument as a result of having actual notice or by moving to
transfer the case to the District of Connecticut.
See [Dkt. 54 at 12-13]. Guidance from the Second
Circuit suggests that a defendant does not waive such a
jurisdictional argument when raised promptly. In Gerena
v. Korb, the Second Circuit concluded that “the
Gerenas' additional arguments that Yale waived any
jurisdictional objections [, specifically their insufficient
service argument, ] by removing the action from state to
federal court, or by commencing discovery, are [] unavailing,
” because “Yale promptly and repeatedly raised
the defense of defective service.” 617 F.3d 197, 202
(2d Cir. 2010). And in Khan v. Khan, the Second
Circuit acknowledged that, “the defense of insufficient
service of process may be waived by a party's failure to
either raise it in a motion under Rule 12(b) of the Federal
Rules of Civil Procedure or to include it in a responsive
pleading, see Fed. R. Civ. P. 12(h)(1), ” but
concluded that was not the case because “it is clear
that, contrary to Appellant's arguments, the Appellees
raised the claim of insufficient service in their first
responsive pleading.” 360 Fed.Appx. 202, 204 (2d Cir.
2010).
The
decision by the Southern District of New York in Sangdahl
v. Litton, 69 F.R.D. 641 (S.D.N.Y. 1976), cited by
Plaintiff, see [Dkt. 54 at 12], does not require
otherwise here. In Sangdahl, the court held that a
defendant was barred from challenging personal jurisdiction
by not joining the Rule 12(b)(2) motion with the
earlier-filed § 1404(a) motion. Id. at 642-43.
In explaining why the defendant had waived this challenge,
the court stated that “the underlying facts to support
a motion to change venue were essentially the same as the
facts upon which [the defendant] grounds his motion for lack
of jurisdiction over the person, and were apparent to
defendant upon the very commencement of suit.”
Id.
Unlike
in Sangdahl, the arguments underlying
Defendants' transfer motion are not “essentially
the same” as those espoused in the motion to dismiss
for defective service of process-this is not a repetitive
motion challenging the same issue. Defendants raised the
issue of defective service in their motion to dismiss and
prior to their responsive pleading without undue delay as is
proper under Federal Rule of Civil Procedure 12. See
Fed. R. Civ. P. 12(h)(1). The fact that Defendants filed a
motion to transfer venue, which the court granted, prior to
filing their 12(b) motion does not waive their objections
based on defective service.
“A
Rule 12(b)(5) motion is the proper vehicle for challenging
the mode of delivery or lack of delivery of the summons and
complaint.” Wright & Miller, 5B Fed. Prac. &
Proc. Civ. § 1353 (3d ed. 2002). “[I]n considering
a motion to dismiss pursuant to 12(b)(5) for insufficiency of
process, a Court must look to matters outside the complaint
to determine whether it has jurisdiction.” Darden
v. DaimierChrysler N. Am. Holding Corp., 191 F.Supp.2d
382, 387 (S.D.N.Y. 2002). “Once a defendant challenges
the sufficiency of service of process, the burden of proof is
on the plaintiff to show the adequacy of service.”
George v. Prof'l Disposables Int'l,
Inc., 221 F.Supp.3d 428, 432 (S.D.N.Y. 2016); accord
Khan v. Kahn, 360 Fed.Appx. at 203.
“In
deciding a Rule 12(b)(5) motion, a court must look to Rule 4,
which governs the content, issuance, and service of a
summons.” DeLuca v. AccessIT Grp., Inc., 695
F.Supp.2d 54, 64 (S.D.N.Y. 2010). Federal Rule of Civil
Procedure 4(m) provides, in relevant part, that “[i]f a
defendant is not served within 90 days after the complaint is
filed, the court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against
that defendant or order that service be made within a
specified time.” Fed.R.Civ.P. 4(m). As the rule states,
failure to serve a defendant within 90 days of filing the
complaint warrants dismissal of the action.
1.
Lack of Service of Process on Boahen
Plaintiff
filed his Complaint on January 10, 2018. Plaintiff had until
approximately April 10, 2018, to effectuate service on
Defendants. Plaintiff has not filed proof of service of
process on Defendant Boahen with the Court. The only mention
of Defendant Boahen in Plaintiff's briefing on the Motion
to Dismiss concedes that Plaintiff's “[a]ttempts to
serve Boahen have been unsuccessful, ” see
[Dkt. 54 at 5], a tacit admission that Boahen was not served.
Nothing in Plaintiff's briefing, Affidavit of Service, or
Plaintiff's Amended Affidavit indicates that Boahen was
served ...