Alvarez v. New York City Department of Education

Background

Evelyn Alvarez sued the New York City Department of Education (DOE) and Brian Leavy DeVale. The court received letters from the parties addressing whether DeVale had been properly served and, if not, what effect that should have on DOE’s pending motion to dismiss.

Alvarez filed the complaint on January 10, 2020. The affidavit of service stated that the summons and complaint were delivered on January 22, 2020, at DOE’s offices at 100 Church Street in Manhattan. At that time, DeVale was employed as principal of P.S. 257 in Brooklyn. DOE appeared in the case and moved to dismiss, but DeVale did not otherwise respond.

Service ruling

Federal Rule of Civil Procedure 4(e) permits service on an individual through methods including personal delivery, delivery at the person’s home to someone of suitable age and discretion who lives there, delivery to an authorized agent, or a method allowed by applicable state law. Under the New York law discussed by the court, personal service could be made by delivering the summons to a person of suitable age and discretion at the individual’s actual place of business. Service on the New York City government could be made by delivering the summons to the corporation counsel, but the court explained that this rule did not authorize service on individual defendants through the City.

The court found that DeVale was not properly served. Because DeVale worked at a school in Brooklyn, delivery at DOE’s Manhattan offices was not delivery at his actual place of business. The court also rejected Alvarez’s argument that DeVale’s continued employment by DOE meant he could be served through DOE’s counsel. The court distinguished the right to sue DeVale in his official capacity from the separate question of whether he was properly served.

Good cause and disposition

A defendant who is not served within 90 days generally must be dismissed or given a specified additional period for service. An extension is required when the plaintiff shows good cause, which the court described as exceptional circumstances beyond the plaintiff’s control. The court found no such circumstances here. It noted that Alvarez knew DeVale did not work at the Manhattan office, DOE’s counsel had stated nearly a year earlier that DeVale had not been served, and Alvarez had not moved for a default judgment. The court also found that delaying DOE’s pending motion to dismiss to allow service would prejudice DOE by slowing the case.

Judge Vernon S. Broderick ordered that Brian Leavy DeVale be dismissed from the case without prejudice. DOE’s motion to dismiss remained pending. This order did not decide that motion or the merits of Alvarez’s claims.