Boahen v. Trifiletti

          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 ...