Dwulit v. Tactical, Scrapefix and Deer Management Systems LLC

Background

Agnieszka Dwulit filed state-law claims alleging discrimination and retaliation against Deer Management Systems LLC and Tactacam LLC. The defendants removed the case to federal court based on diversity jurisdiction. After the court treated Dwulit’s motion to return the case to state court as withdrawn, it gave her an opportunity to amend her complaint. She filed an amended complaint that was nearly identical to the original one.

The opinion notes that the amended-complaint caption names a nonexistent defendant, “Tactical, Scrapefix and Deer Management Systems LLC.” The allegations appeared to identify Deer Management Systems LLC and Tactacam LLC as the intended defendants. The complaint also referred to “Scrapefix,” but provided no identifying information for that entity, which had not been served.

Motion to Dismiss

The defendants moved to dismiss on several grounds, including insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). Service of process is the formal delivery of the summons and complaint that gives a court authority to exercise personal jurisdiction over a defendant. For a limited liability company, federal and New York rules generally require delivery to an appropriate officer, manager, member, or authorized agent, or service through the New York Secretary of State under the circumstances described by state law.

Dwulit relied on an invoice from the process-serving company as proof of service. The court held that the invoice was not sufficient because Federal Rule of Civil Procedure 4 requires proof of service through the server’s affidavit. The invoice stated that the papers were delivered to a “customer service manager,” April Skroch, but it did not show that Skroch was a member, manager, authorized agent, or designated recipient for either defendant. The defendants attested that Skroch did not hold any of those roles, and Dwulit did not rebut that evidence.

Ruling

The court held that Dwulit failed to meet her burden of showing proper service. It therefore granted the defendants’ motion to dismiss and directed the Clerk of Court to close the pending motions and the case.

The court did not reach the defendants’ alternative arguments under Rules 12(b)(2), 12(b)(4), and 12(b)(6), concerning personal jurisdiction, insufficient process, and failure to state a claim. The opinion states that those arguments might also have independently supported dismissal.