Pate v. City of Rochester

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________

CHRISTOPER PATE,

Plaintiff,

DECISION AND ORDER

v.

6:19-CV-6691-EAW-MWP

THE CITY OF ROCHESTER, a municipal

entity, POLICE OFFICER COLLINS,

POLICE OFFICER MICHAEL

DIMAURO, POLICE OFFICER

SPENCER McAVOY, FORMER POLICE

OFFICER MICHAEL SIPPEL, POLICE

OFFICER DEREK STERLING, POLICE

OFFICER MARC SUTTON, SERGEANT

ERIC WEIGEL, and OTHER

UNIDENTIFIED MEMBERS OF THE

ROCHESTER POLICE DEPARTMENT,

Defendants.

____________________________________

INTRODUCTION

Plaintiff Christopher Pate (“Plaintiff”) commenced this action on August 5, 2019,

in New York State Supreme Court, Monroe County, seeking damages against Police

Officer Michael Collins, Police Officer Michael Dimauro, Police Officer Spencer McAvoy

(“McAvoy”), former Police Officer Michael Sippel (“Sippel”), Police Officer Derek

Sterling, Police Officer Marc Sutton, Sergeant Eric Weigel, other unidentified members of

the Rochester Police Department (“RPD”), and the City of Rochester (the “City,”

collectively “Defendants”), arising from the alleged wrongful arrest of Plaintiff on May 5,

2018. (Dkt. 1). Currently pending before the Court is Plaintiff’s motion seeking remand

to Supreme Court, Monroe County. (Dkt. 19). The City filed a response on behalf of itself

and the police officers except Sippel and McAvoy, who have not appeared in this matter.

(Dkt. 3). Plaintiff filed a reply on June 18, 2021. (Dkt. 23).

For the reasons set forth below, Plaintiff’s motion to remand is denied. In addition,

Plaintiff is ordered to file an affidavit within 14 days showing that he has served McAvoy

and Sippel or setting forth good cause for his failure to do so, or the Court will dismiss

Plaintiff’s claims against these defendants without prejudice.

PROCEDURAL BACKGROUND

On August 5, 2019, Plaintiff filed the instant action in Supreme Court, Monroe

County, alleging false arrest, false imprisonment; violation of Plaintiff’s right to be free

from unreasonable search and seizure pursuant to the Fourth Amendment and 42 U.S.C.

§ 1983; assault; battery; excessive force in violation of the Fourth Amendment; malicious

prosecution under New York state law; malicious prosecution under 42 U.S.C. § 1983;

supervisory liability under 42 U.S.C. §1983; negligent screening and hiring under New

York state law; municipal liability for hiring and vetting of officers pursuant to Monell v.

Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978); negligent training,

supervision, and retention; and municipal liability for filing defective charges. (Dkt. 1 at

¶ 1; Dkt. 2 at 28-41). Plaintiff delivered the summons and complaint to the City’s Law

Department (“Law Department”) on or about August 22, 2019. 1 (Dkt. 1 at ¶ 2; see Dkt. 2-

1 at 1).

1 Although the notice of removal states that the summons and complaint were served

on the City’s Law Department on “August 22, 2018,” the copy of the summons filed as an

On September 18, 2019, the City filed a notice of removal to this Court contending

that Plaintiff’s causes of action pressed under the Fourth and Fourteenth Amendments and

42 U.S.C. § 1983 raise questions of federal law warranting removal to this Court pursuant

to 28 U.S.C. §1441(c). (Dkt. 1 at ¶¶ 5-6). The City filed its answer on October 22, 2019,

noting that the City does not represent Sippel or McAvoy. (Dkt. 3).

On November 5, 2019, the matter was assigned to United States Magistrate Judge

Marian W. Payson for all pretrial matters excluding dispositive motions. (Dkt. 4).

Numerous scheduling orders were entered by Judge Payson as the parties litigated the

matter. (See Dkt. 6; Dkt. 11; Dkt. 14; Dkt. 17). Then, almost two years after the case was

removed to this Court, by letter dated May 13, 2021, Plaintiff requested that Judge Payson

extend several discovery deadlines and set motions for remand as due on May 19, 2021.

(Dkt. 18). The letter indicates that the dates had been discussed with defense counsel, but

it does not indicate that there was any type of stipulation to extend the deadline for a remand

motion nor does it brief the issue of ability for a court to do so. (Id.).

Plaintiff filed the instant motion for remand on May 19, 2021, contending that the

City failed to satisfy the requirement set forth in 28 U.S.C. § 1446(b) that “all defendants

who have been properly joined and served must join in or consent to the removal of the

exhibit to the notice of removal bears a Law Department date stamp reading “2019 AUG

21” (Dkt. 2-1 at 1). The notice of removal also states that it was “filed within 30 days of

the service of the named Defendants’ [sic] of the Summons and Complaint.” (Dkt. 1 at

¶ 7). The notice of removal was filed on September 18, 2019. (Dkt. 1). For the purpose

of calculating filing deadlines, the Court will construe “August 22, 2018” as a

typographical error and will treat the date of service upon the Law Department as August

22, 2019, noting that the single-day difference between August 21 and August 22 of 2019

does not alter the Court’s analysis.

action.” (See Dkt. 19-5 at 4). Plaintiff argues that because McAvoy was an RPD officer

at the time the summons and complaint were delivered to the Law Department, McAvoy

was properly served. (Id.) However, Plaintiff argues, the City sought removal without

obtaining McAvoy’s or Sippel’s consent as required by statute. (Id.). Therefore, Plaintiff

contends, each officer must individually consent to removal—including McAvoy. (Id. at

4-5).

The City responded that removal is proper because no defendant other than the City

has been served or joined. (Dkt. 22 at ¶ 9). The City contends that McAvoy and Sippel

are no longer employed by RPD, and the City does not represent them. (Id. at ¶ 6). As

such, service on the City does not constitute service on Sippel or McAvoy. (See id. at ¶ 9).

The City further contends that Plaintiff’s motion to remand is untimely because it was filed

more than 30 days from the filing of the notice of removal. (Id. at ¶ 12 (citing 28 U.S.C.

1447(c))). The City also argues that service “is not complete . . . on the proper City

Defendants”2 because Plaintiff failed to file proof of service with the Clerk of Court as

required by New York Civil Practice Law and Rules (“CPLR”) 308(2). (Id. at ¶ 21).

In his reply, Plaintiff argues that service upon a governmental subdivision is

executed pursuant to CPLR 311. (Dkt. 23 at 3-4). Because McAvoy was employed by

RPD at the time the summons and complaint were delivered to the Law Department,

Plaintiff has properly effected service on all defendants except Sippel through service upon

2 The City refers to “City Defendants” as excluding Sippel and McAvoy but does not

otherwise define “City Defendants.” (See Dkt. 22 at ¶ 1). The Court construes “City

Defendants” to refer to the City and the police officer Defendants other than Sippel and

McAvoy.

the City pursuant to CPLR 311. (See Dkt. 23 at 3-4). Plaintiff also argues that the City is

obligated to represent McAvoy because McAvoy is party to a collective bargaining

agreement suggesting the City would represent McAvoy, and the City did not disclaim its

representation of McAvoy until the City filed the notice of removal. (Id. at 2-3).

DISCUSSION

I. Motion for Remand

A. Legal Standard

28 U.S.C. § 1447(c) authorizes federal courts to remand a case “on the basis of any

defect in removal procedure” or because “the district court lacks subject matter

jurisdiction.” LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 72 (2d

Cir. 1994). “In a case removed to federal court from state court, the removal statute is to

be interpreted narrowly, and the burden is on the removing party to show that subject matter

jurisdiction exists and that removal was timely and proper.” Winter v. Novartis Pharm.

Corp., 39 F. Supp. 3d 348, 350 (E.D.N.Y. 2014) (citing Lupo v. Human Affairs Int’l, Inc.,

28 F.3d 269 (2d Cir. 1994)). A court will “generally evaluate a defendant’s right to remove

a case to federal court at the time the removal notice is filed.” Vera v. Saks & Co., 335

F.3d 109, 119 n.2 (2d Cir. 2003).

“[O]n a motion to remand, the party seeking to sustain the removal, not the party

seeking remand, bears the burden of demonstrating that removal was proper.” Hodges v.

Demchuk, 866 F. Supp. 730, 732 (S.D.N.Y. 1994) (citing R.G. Barry Corp. v. Mushroom

Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979) (“[T]he burden falls squarely upon the

removing party to establish its right to a federal forum by competent proof.” (citation

omitted))); see also Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006) (“It is well-

settled that the party asserting federal jurisdiction bears the burden of establishing

jurisdiction.”). Moreover, “the party seeking remand is presumed to be entitled to it unless

the removing party can demonstrate otherwise,” Bellido-Sullivan v. Am. Int’l Grp., Inc.,

123 F. Supp. 2d 161, 163 (S.D.N.Y. 2000), and “any doubts as to removability should be

resolved in favor of remand,” Payne v. Overhead Door Corp., 172 F. Supp. 2d 475, 477

(S.D.N.Y. 2001).

B. Timeliness of Plaintiff’s Motion for Remand

“A motion to remand the case on the basis of any defect other than lack of subject

matter jurisdiction must be made within 30 days after the filing of the notice of removal.”

28 U.S.C. § 1447(c). Plaintiff does not challenge the Court’s subject matter jurisdiction.

Rather, he argues that the City has not properly obtained the consent of all defendants as

required by 28 U.S.C. § 1446(b)(2). (Dkt. 19-5 at 4-5). The City contends, inter alia, that

Plaintiff’s motion to remand is “grossly untimely” because the City filed its notice of

removal on September 18, 2019, and Plaintiff filed his motion to remand on May 19, 2021–

some 20 months after removal and well beyond the 30-day deadline for motions to remand

set by 28 U.S.C. § 1447(c). (See Dkt. 22 at ¶¶ 12, 17).

Plaintiff concedes in his reply that the motion is untimely pursuant to 28 U.S.C.

§ 1447(c). (Dkt. 23 at 4). Plaintiff argues that the parties agreed to set a deadline for

motions to remand on May 19, 2021, which Judge Payson granted by letter order on May

17, 2021. (Id.). The parties did not submit briefing to Judge Payson addressing the court’s

authority to extend the 30-day deadline in connection with Plaintiff’s letter request, and as

noted above, the letter requesting that extension simply indicated that Plaintiff’s counsel

had “discussed” the deadline with defense counsel. (Dkt. 18).

The Second Circuit has held that the deadline set forth in 28 U.S.C. § 1447(c) “is

plainly mandatory[,]” Phoenix Glob. Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422

F.3d 72, 75 (2d Cir. 2005), and thus “[u]nder [1447(c)], all motions for remand—except

those based on lack of subject matter jurisdiction—must be made within 30 days after

removal or they are waived[,]” Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 643 (2d Cir.

1993) (per curiam). In Phoenix Global Ventures, the Circuit permitted a district court to

recognize as timely a motion for remand filed but rejected twice on the thirtieth day after

the notice of removal due to noncompliance with the electronic filing system requirements.

422 F.3d at 75. The Court held that the district court did not abuse its discretion in deeming

the motion “made” when it was originally filed—on the thirtieth day after filing of the

notice of removal—even though the filing was rejected. Id. In so holding, the Circuit

noted the lack of “statutory language that purports to limit the court’s power to consider an

overdue motion.” Id. at 75. However, the Circuit emphasized that it was not “carving out

an exception to the mandatory deadline of Section 1447.” Id. at 76.

Despite the Second Circuit’s language that the 30-day deadline set forth in § 1447(c)

is mandatory, district courts in this Circuit have considered motions for remand filed

outside the 30-day deadline. A court in this District concluded that because the Second

Circuit has held that § 1447(c) is not jurisdictional, it must be a mandatory claims

processing rule that can be waived by the parties by stipulation. See Radium2 Capital, Inc.

v. NDGS, LLC, 19-CV-286, 2019 WL 3821755, at *2 (W.D.N.Y. Aug. 15, 2019)

(considering a motion for remand filed one week after the 30-day deadline based on parties’

stipulation that the plaintiff may “seek to remand the action to the State Court” only after

May 15, 2019). Another court in this Circuit held that where a plaintiff sought and was

granted an extension before the 30-day filing period elapsed, a motion for remand was

timely and did not prejudice the defendant. Harleysville Worcester Ins. Co. v. Sompo

Japan Ins. Co. of Am., 21-CV-150 (JPO), 2021 WL 5154130, at *2 (S.D.N.Y. Nov. 5,

2021). By contrast, another court in this Circuit considered without deciding “whether [a

court] is empowered to extend the statutory time limitation [set by 28 U.S.C. § 1447(c)]

for good cause shown[,]” reasoning that “[g]iven the mandatory language of the statute,

that question would appear to be answered in the negative.” Ajibola v. Sabena Belgium

Airline, No. 95 CIV. 2479 (CSH), 1995 WL 390134, at *1 (S.D.N.Y. July 3, 1995) (finding

that good cause to merit extension of the deadline had not been shown).

Several courts of appeals in other circuits have expressly held that courts may not

consider untimely motions for remand. See, e.g., Farmland Nat’l Beef Packing Co., L.P.

v. Stone Container Corp., 98 F. App’x 752, 756 (10th Cir. 2004) (vacating district court’s

remand order based on untimeliness of motion for remand); Ariel Land Owners, Inc. v.

Dring, 351 F.3d 611, 613 (3d Cir. 2003) (“[§ 1447(c)] is clear that, if based on a defect

other than jurisdiction, remand may only be effected by a timely motion”); Loftis v. United

Parcel Serv., Inc., 342 F.3d 509, 516-517 (6th Cir. 2003) (“[T]echnical defects in the

removal procedure, such as a breach of the rule of unanimity, . . . must be raised by a party

within thirty days of removal or they are waived.” (citation omitted)).

Other federal courts have considered whether § 1447(c) permits extension of the 30-

day deadline, concluding that the deadline cannot be extended. See Dreyer v. Swift Transp.

Co. of Ariz., LLC, No. 4:19-CV-1859 CAS, 2019 WL 3322976, at *2 (E.D. Mo. July 24,

2019) (“[Section 1447(c)] is strictly construed and the Court lacks the authority to extend

the time for plaintiff to file a motion to remand asserting a procedural defect in the

removal.”); City of Asbury Park v. Star Ins. Co., No. CV 17-5059-BRM-LHG, 2018 WL

1469056, at *4 (D.N.J. Mar. 26, 2018) (“Section 1447 explicitly requires motions for

remand ‘be made within 30 days after the filing of the notice of removal,’ . . . and the Court

has no discretion with respect to that time limit.” (emphasis in original) (citations omitted));

Brown v. Modell’s PA II, Inc., Civil Action No. 08-1528, 2008 WL 2600253, at *3 (E.D.

Pa. July 1, 2008) (denying plaintiffs’ motion to remand filed 31 days after removal); but

see Sharp BancSystems, Inc. v. First Nat’l Bank, 4:12-CV-285-Y, 2012 WL 13027081, at

*1-2 (N.D. Tex. July 30, 2012) (collecting cases holding that a forum selection clause is

not a “defect” within the meaning of § 1447(c), and the 30-day deadline does not apply to

removal challenges based on forum selection clauses). Although in exceedingly rare cases,

courts have excused strict compliance with the 30-day restriction on motions for removal,

federal courts overwhelmingly hold that untimely motions for remand may not be

considered and any arguments challenging defects in removal procedure are waived if not

timely asserted.

Plaintiff represents that the City consented to the deadline for remand of May 19,

2021. (Dkt. 23 at 4-5). However, any such consent is far from clear, and the City opposes

the motion for remand based on its untimeliness. (Dkt. 22 at ¶¶ 12, 17). Even if consent

to extend the deadline for motions to remand were clear, the plain language of § 1447(c)

and the Second Circuit’s construction of the statute indicate that, by failing to file a motion

for remand within 30 days of filing of the notice of removal, Plaintiff has waived any

procedural challenges to removal. See Phoenix Glob. Ventures, 422 F.3d at 75. The Court

does not have the authority to extend the deadline under these facts. See Ajibola, 1995 WL

390134, at *1.

And even if it did have the authority to grant an extension, it would decline to do so

given the 20 months that has elapsed since the notice of removal was filed. In other words,

Plaintiff has failed to show that good cause should excuse his untimely motion. Plaintiff’s

counsel asserts in his letter request dated May 13, 2021, only that “the City removed the

proceeding to Federal Court without first obtaining the consent of all the parties, and I

believe there are questions regarding whether it was properly removed.” (Dkt. 18 at 1).

The argument set forth in Plaintiff’s reply is substantially identical. (Dkt. 23 at 4-5).

Challenging the unanimity of removal is precisely the type of challenge that must be raised

within the 30 days mandated by § 1447(c), see, e.g., Loftis, 342 F.3d at 516-17, and

Plaintiff has failed to set forth any facts or argument in his moving papers showing why he

was unable to assert this challenge within the 30 days prescribed by statute.

In the few cases in this Circuit in which courts considered remand motions filed

outside the 30-day limit, parties either relied on a stipulated deadline set before the statutory

30-day deadline passed, see Radium2 Capital, Inc., 2019 WL 3821755, at *1, or sought an

extension before the deadline passed, see Harleysville Worcester Ins. Co., 2021 WL

5154130, at *2. In the instant case, Plaintiff allowed the deadline to pass, only arguing that

the unanimity of defendants was not obtained well over a year after the deadline for

motions for remand had expired.

Because Plaintiff did not file a motion for remand within 30 days of the notice of

removal, Plaintiff has waived all challenges to removal defects other than lack of subject

matter jurisdiction. See Phoenix Glob. Ventures, 422 F.3d at 75. Such procedural

challenges must be asserted with the requisite urgency dictated by statute in order to avoid

protracted litigation surrounding the choice of forum. See 16 James Wm. Moore et al.,

Moore’s Federal Practice § 107.151[1][d] (3d ed. 2018) (“[A]s indicated by the 30-day and

one-year statutory periods for removal, and the 30-day statutory period for motions to

remand, Congress wants the forum selection battle decided as soon as possible[.]”).

Accordingly, Plaintiff’s motion for remand is denied.

II. Proper Service on City Defendants

In its response to Plaintiff’s motion to remand, the City asserts that “service is not

complete in this matter” on any defendants except the City because “Plaintiff’s attorneys

have not filed proof of service with the Clerk of Court” as required by CPLR 308(2). (Dkt.

22 at ¶¶ 9, 21). Although the City appears to assert this argument in support of the position

that neither Sippel’s nor McAvoy’s consent was necessary for removal (see id.), the Court

will not reach that issue, as Plaintiff’s motion for remand was untimely, and Plaintiff has

thereby waived his challenge to this defect. However, to the extent that the City argues

that service against the officers it represents has not been properly effectuated, the Court

will address the City’s argument only in so far as it is necessary to dismiss it as untimely

raised.

In response to the City’s position, Plaintiff contends that CPLR 311 governs service

in this matter because the City represents several of the officers named as defendants. (Dkt.

23 at 3-4). As such, Plaintiff argues, service was properly effectuated by delivering the

summons and complaint “to the mayor, comptroller, treasurer, counsel or clerk; or, if the

city lacks such officers, to an officer performing a corresponding function under another

name.” (Id. (citing CPLR 311(a)(3))).

In its answer, the City did not challenge service of process on itself or the officers

it represents, and it did not file any motion pursuant to Federal Rule of Civil Procedure

12(b) to challenge service of process. Challenges to service of process are properly brought

as a motion or stated as a defense pursuant to Federal Rule of Civil Procedure 12(b)(4) for

insufficient process or 12(b)(5) for insufficient service of process. See Shuford v. City of

N.Y., 17-cv-6349(EK)(SJB), 2020 WL 3129262, at *1 (E.D.N.Y. June 12, 2020) (“Rule

12(h) of the Federal Rules of Civil Procedure requires that an insufficient-service-of-

process defense be made either in an answer or a pre-answer motion.” (citing Fed. R. Civ.

P. 12(b)); DiFillipo v. Special Metals Corp., 299 F.R.D. 348, 353-54 (N.D.N.Y. 2014)

(“Objections to sufficiency of process under Fed. R. Civ. P. 12(b)(4) must identify

substantive deficiencies in the summons, complaint or accompanying documentation.”

(citation omitted)). Federal Rule of Civil Procedure 12(h) states, in relevant part, that “[a]

party waives any defense listed in Rule 12(b)(2)–(5) by: . . . (B) failing to either: (i) make

it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment

allowed by Rule 15(a)(1) as a matter of course.” The City asserts its challenge in its

opposition papers to Plaintiff’s motion to remand, filed on June 11, 2021—more than 20

months after such a defense should have been presented in the answer or by motion. See

Fed. R. Civ. P. 12(b); Fed. R. Civ. P. 81(c)(2). As such, the relief the City appears to seek

follows neither the form nor timing requirements set forth in the Federal Rules of Civil

Procedure. Even if the City had timely asserted challenges pursuant to Rules 12(b)(4) or

12(b)(5), “[t]hose rules countenance dismissal of a complaint for ‘insufficient process’ and

‘insufficient service of process,’ but not for failure to file proof of service.” In re LIBOR-

Based Antitrust Fin. Instruments Antitrust Litig., No. 11 MDL 2262(NRB), 2015 WL

6696407, *14 n.24 (S.D.N.Y. Nov. 3, 2015). “Failure to prove service does not affect the

validity of service,” and the Court “may permit proof of service to be amended.” Fed. R.

Civ. P. 4(l)(3).

Because the City failed to timely challenge service of process pursuant to Rule

12(b), it has waived its challenge. See Shuford, 2020 WL 3129262, at *1 (“Defendants

waived their 12(b)(5) defense by failing to assert it either in an answer or a timely motion,

as dictated by Rule 12(h).”). In the notice of removal, the City indicates that “copies of the

Summons and Complaint were served on the City of Rochester’s Law Department and on

members of the [RPD].” (Dkt. 1 at ¶ 2). The City’s Law Department has appeared in this

matter and has failed to timely challenge service on behalf of the RPD officers it represents.

As such, the City has waived such a challenge. See Shuford, 2020 WL 3129262, at *2;

Fed. R. Civ. P. 12(h).

III. Service on McAvoy and Sippel

As discussed above, the City contends that, based upon information and belief,

service of process has not been effectuated on McAvoy or Sippel. (See Dkt. 22 at ¶ 19).

Although the City raised this issue in its opposition papers to Plaintiff’s motion for remand,

which is denied as untimely, the Court is nonetheless concerned that this action has been

pending for more than two years and there is no indication in the record that service has

been effectuated—or even attempted—on Sippel, and the record is unclear as to whether

service has been effectuated on McAvoy.

“If 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.” See

Fed. R. Civ. P. 4(m). “[A] party must be given notice and an opportunity to show cause as

to why the action should not be dismissed before a court sua sponte dismisses a complaint

for failure to serve, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.”

Charles v. Cnty. of Nassau, 116 F. Supp. 3d 107, 113 n.7 (E.D.N.Y. 2015) (citing Meilleur

v. Strong, 682 F.3d 56, 61 (2d Cir. 2012)); see also Dicks v. Chow, 382 F. App’x 28, 30

(2d Cir. 2010) (affirming sua sponte dismissal for failure to serve where “the claim was

dismissed over a year after the filing of the amended complaint, the court provided notice

that the unserved defendants would be dismissed, and [the plaintiff] has never asserted any

good cause for his failure to effect service”). “[I]f the plaintiff shows good cause for the

failure, the court must extend the time for service for an appropriate period.” Fed. R. Civ.

P. 4(m).

Plaintiff contends that the summons and complaint were served on McAvoy and all

other involved RPD officers employed by the City when the documents were delivered to

the Law Department during the time that McAvoy was an officer because the City

represents “the officers involved in this case” pursuant to a collective bargaining

agreement. (Dkt. 23 at 3-4). Plaintiff argues that service on the City was effectuated

through delivery of the summons and complaint on the Law Department pursuant to CPLR

311. (Dkt. 23 at 4; see Dkt. 19-5 at 2-3). Plaintiff’s counsel contacted counsel for the City

to confirm that officers had received the summons and complaint. (Id.). Counsel for the

City responded that delivery of multiple copies of the summons and complaint to the Law

Department was “fine and effective for all of the officers” except Sippel. (Dkt. 19-2 at 1).

Plaintiff does not argue that he has effectuated service upon Sippel. (See Dkt. 19-1; Dkt.

19-5; Dkt. 23).

The City contends that the representation that service was effective for all officers

except Sippel was an attempt “to work with” Plaintiff’s attorney “to effectuate service[,]”

but counsel for the City cannot “instruct anyone when service is perfected or complete[.]”

(Dkt. 22 at ¶ 20). As of the time the City filed its answer, McAvoy “[was] still an officer

for the [RPD.]” (Dkt. 3 at ¶ 7). However, the City has stated that it represents neither

Sippel nor McAvoy in its notice of removal and answer. (Dkt. 22 at ¶ 11a;3 see Dkt. 1 at

¶ 10; Dkt. 3 at 1). Prior to filing the notice of removal, counsel for the City contacted the

criminal defense attorneys for Sippel and McAvoy, who conveyed that neither officer had

been served with a summons or complaint. (Dkt. 22 at ¶ 8).

3 The affirmation of John C. Campolieto (Dkt. 22) filed with the City’s opposition

papers contains two paragraphs numbered 11. The Court will refer to the first paragraph

as 11a and the second as 11b.

There is no indication in the record that Sippel or McAvoy have been personally

served or served at their usual places of abode with a summons or complaint. See Fed. R.

Civ. P. 4(e); CPLR 308(1), (2). No affidavits of service have been filed with regard to any

defendant. See Fed. R. Civ. P. 4(l); CPLR 308(2). Plaintiff has cited no authority

supporting the proposition that suit on the City through the Law Department pursuant to

CPLR 311 is sufficient to constitute service on individual officers. Indeed, the plain text

of CPLR 311 indicates only that the provision governs “[p]ersonal service upon a

corporation or governmental subdivision.” CPLR 311.

There are insufficient facts before the Court to determine whether delivery of the

summons and complaint to the Law Department constitutes delivery of the summons to a

person of suitable age and discretion at McAvoy’s actual place of business. See CPLR

308(2); see also Tieman v. City of Newburgh, No. 13-CV-4178 (KMK), 2015 WL 1379652,

at *7-8 (S.D.N.Y. March 26, 2015) (holding that service at city corporation counsel’s office

did not constitute service on individual officers at actual place of business pursuant to

CPLR 308(2) based on facts presented). Importantly, “[a] person’s ‘actual place of

business’ must be where the person is physically present with regularity, and that person

must be shown to regularly transact business at that location.” Tieman, 2015 WL 1379652,

at *7 (collecting cases) (citing Selmani v. City of N.Y., 100 A.D.3d 861, 954 (2d Dep’t

2012)). Plaintiff has put forth no facts to support such a finding.

Although Plaintiff has not set forth sufficient facts or authority to support a finding

that he has effectuated service on McAvoy, the Court must give Plaintiff an opportunity to

show cause as to why his claims against McAvoy should not be dismissed for failure to

serve. See Fed. R. Civ. P. 4(m); Charles, 116 F. Supp. 3d at 113 n.7. Plaintiff must also

show cause for failing to serve Sippel. See Fed. R. Civ. P. (m). If Plaintiff fails to establish

good cause for failing to effect service on Sippel and McAvoy, the court must dismiss

without prejudice Plaintiffs claims against these defendants. See Fed. R. Civ. P. 4(m).

CONCLUSION

For the foregoing reasons, Plaintiff's motion to remand (Dkt. 19) is denied. Plaintiff

must file an affidavit within 14 days showing that he has served McAvoy and Sippel or

showing good cause for his failure to do so, or the Court will dismiss Plaintiffs claims

against these defendants without prejudice.

SO ORDERED.

\_ple

ELIZABETHA. WOKEORD

tef Judge

United States District Court

Dated: January 7, 2022

Rochester, New York

-17-