Goldman v. Weisman
- Edgardo Ramos
- 1:23-cv-09602
- U.S. District Court · Southern District of New York
- 5
In Goldman v. Weisman, Judge Ramos dismissed Goldman’s defamation case without prejudice because Weisman was not properly served.
Todd Goldman’s defamation action against Eli Weisman was dismissed without prejudice because of inadequate service of process. The court did not decide the merits of the defamation claim.
What happened
Goldman v. Weisman involved Todd Goldman’s defamation claim against Eli Weisman over statements quoted in a New York Post article about an earlier lawsuit between them. Weisman was quoted calling Goldman’s allegations “a complete falsehood” and his demand letters an “attempted extortion.”
Weisman filed an unopposed motion to dismiss, arguing that Goldman had not properly served him. Goldman filed an affidavit saying Weisman was personally served at his office, but Weisman submitted a sworn statement denying service and identifying differences in the description and circumstances of the alleged service.
Judge Edgardo Ramos ruled that Weisman’s sworn statement overcame the presumption that service was proper. The court granted Weisman’s motion and dismissed the action without prejudice because Goldman did not serve Weisman within the required 90-day period and lacked good cause for the delay.
The detailed version
- Goldman v. Weisman · No. 1:23-cv-09602
- Edgardo Ramos
- Feb. 10, 2025
Background
Todd Goldman brought a diversity action against Eli Weisman for defamation. The claim arose from an August 10, 2023, New York Post article discussing a separate lawsuit Goldman had filed against Weisman and others. In that earlier lawsuit, Goldman alleged that Weisman and others had sold fake copies of Goldman’s work. The article quoted Weisman as saying that Goldman’s allegations were “a complete falsehood” and that Goldman’s related demand letters were an “attempted extortion.”
Procedural History
Goldman filed a summons in New York state court on September 6, 2023, and filed an affidavit of service stating that a process server personally served “Eli Weisman” at an office in Los Angeles, California, on September 16, 2023. Weisman later removed the case to federal court.
Weisman moved to dismiss under Federal Rule of Civil Procedure 12(b)(5), which permits dismissal for insufficient service of process. He also moved under Rules 12(b)(2) and 12(b)(6), but the ruling resolved the case based on service of process. Goldman did not file opposition papers despite receiving multiple extensions.
Court’s Analysis
An affidavit of service generally creates a presumption that service was proper. But a defendant can overcome that presumption by submitting a sworn denial supported by specific facts. Once service is challenged, the plaintiff must prove that service was adequate.
The court found that Weisman’s affidavit supplied specific facts contradicting Goldman’s affidavit. Goldman’s affidavit described the person served as being in his 50s, weighing about 160 pounds, and being 5 feet 10 inches tall. Weisman stated that he was in his 40s, weighed about 230 pounds, and was 6 feet 4 inches tall. Weisman also stated that September 16, 2023, was the Sabbath and Rosh Hashanah, that he was attending synagogue, and that his office was closed for the holiday.
The court concluded that Weisman had rebutted the presumption of proper service. It further found that Goldman did not serve Weisman within the 90-day period required by Federal Rule of Civil Procedure 4(m) and lacked good cause for the failure.
Disposition
Judge Edgardo Ramos granted Weisman’s motion to dismiss. The court dismissed the action without prejudice, directed the Clerk of Court to terminate the motions, and closed the case. The opinion did not decide whether Weisman’s statements were defamatory.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.