Obot v. Navient Solutions, Inc. ( 2018 )

17-407
Obot v. Navient Solutions, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 19th day of March, two thousand eighteen.
PRESENT:
JOHN M. WALKER, Jr.,
PETER W. HALL,
RAYMOND J. LOHIER, Jr.,
Circuit Judges.
______________________________________________
Otu A. Obot,
Plaintiff-Appellant,
v. No. 17-407-cv
Navient Solutions, Inc.,
Defendant-Appellee.
______________________________________________
FOR PLAINTIFF-APPELLANT: Otu A. Obot, pro se, Amherst, NY.
FOR DEFENDANT-APPELLEE: Michael Del Valle, Sessions, Fishman,
Nathan & Israel L.L.C., Williamsville, NY,
Brian D. Roth, Sessions, Fishman, Nathan &
Israel L.L.C., Metairie, LA.
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Appeal from a judgment of the United States District Court for the Western District of
New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
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
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Obot’s contention that NSL improperly changed its name from the U.S. Department of Education
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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.
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.
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Accordingly, we AFFIRM the district court’s judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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