OBOT v. NAVIENT SOLUTIONS INC (2018)

SUMMARY ORDER

Otu A. Obot, proceeding pro se, appeals from a judgment dismissing his complaint for improper service of process. Obot repeatedly attempted service of process on Navient Solutions, LLC f/k/a Navient Solutions, Inc. (“NSL”) by certified mail to a P.O. Box in Pennsylvania. He also attempted service of process on NSL by certified mail to NSL’s attorney. NSL moved to dismiss for improper service. Obot then filed a Freedom of Information Act (“FOIA”) request in district court, which the district court denied. The district court dismissed Obot’s complaint, and this appeal follows. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review for an abuse of discretion a dismissal for improper service under Federal Rule of Civil Procedure 12(b)(5). Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). “[W]hen a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Id. at 752 (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005) ). A district court abuses its discretion when “(1) its decision rests on an error of law ․ or a clearly erroneous factual finding, or (2) its decision ․ cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001) (internal footnotes omitted).

NSL is a corporate entity.¹ Accordingly, Obot was required to effect service either (1) in the manner required under New York or Pennsylvania law or (2) by delivering a copy of the summons and complaint to certain corporate officers or an agent authorized to receive service of process. Fed. R. Civ. P. 4(e)(1), (h)(1)(A)–(B). Obot does not contend that he personally served any entity, as required under Federal Rule of Civil Procedure 4(h)(1)(B), which leaves only service by mail under New York and Pennsylvania law.

Under New York law, Obot was required to send “by first class mail, postage prepaid, a copy of the summons and complaint ․ together with two copies of a statement of service by mail and acknowledgement of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender.” N.Y. C.P.L.R. § 312-a(a). Nowhere did Obot even assert that he complied with these requirements, and he specifically averred that he effected service through certified mail, rather than first-class mail. Accordingly, regardless of the entity on which he attempted service, service was ineffective under New York law.

Under Pennsylvania law, service by mail is authorized when the service is effected “outside the Commonwealth.” Pa. R. Civ. P. 404. As noted, however, Obot’s attempted service on NSL was to a P.O. Box in Pennsylvania, i.e., within the Commonwealth. Service by mail was therefore not permitted, and was ineffective under Pennsylvania law.

Obot’s remaining arguments fare no better. He has not demonstrated that NSL’s attorney was an agent authorized by NSL to receive service of process on its behalf. NSL’s motion to dismiss was timely filed within the period directed by the district court. NSL’s belated filing of its corporate disclosure statement is immaterial to whether NSL was properly served. And NSL is not a Government agency and was thus not required to respond to Obot’s FOIA request.

Accordingly, we AFFIRM the district court’s judgment.

FOOTNOTES

1.   Obot’s contention that NSL improperly changed its name from the U.S. Department of Education c/o Navient, and should therefore have been subject to service as a Government agency under Federal Rule of Civil Procedure 4(i), is frivolous.