Tantaros v. FOX NEWS NETWORK

Background

Andrea K. Tantaros asked the court to deem defendant John Finley properly served or, alternatively, to permit service by another method. Tantaros had filed a complaint and an amended complaint against Finley and others. She reported sending service materials to Erin Kormann, counsel for Finley, by email, but Kormann responded that she could not accept or waive service for Finley. Tantaros also reported sending the summons and complaint to Finley by overnight delivery and later stated that she sent the summons and amended complaint by certified first-class mail with a signature requirement.

Finley had not appeared. In an earlier order, Judge Broderick denied Tantaros’s request for alternative service because she had not shown that ordinary service was impracticable.

Court’s analysis

Federal Rule of Civil Procedure 4(e)(2) permits service on an individual by personally delivering the summons and complaint or by leaving them at the person’s dwelling or usual place of abode with a suitable resident. The court concluded that Tantaros had not met that requirement because she stated that she served Finley by first-class mail.

Rule 4(e)(1), however, also permits service under state law. The court explained that New York Civil Practice Law and Rules (CPLR) § 312-a(a) permits service by first-class mail only when the mailing includes the summons and complaint, two copies of a statement of service by mail and acknowledgment of receipt, and a prepaid return envelope. Under CPLR § 312-a(b), service is not complete until the defendant signs and returns the acknowledgment.

The court noted that Tantaros’s affidavit did not state that she included the required statements, acknowledgment, or prepaid return envelope. The opinion also noted that it was unclear whether Tantaros used first-class United States mail or UPS overnight delivery.

Ruling

The court directed Tantaros to serve Finley under CPLR § 312-a(a) or under Federal Rule of Civil Procedure 4(e)(2) through a process server by November 15, 2025. The clerk was directed to terminate the motion at ECF No. 106. The order does not state that the motion was granted or denied.