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In Ebanks v Ebanks, 2007 WL 2591196 (S.D.N.Y.)
Paul Ebanks ("Petitioner") brought an action for return of his children
from his wife, Yvonette Ebanks ("Respondent"). Respondent filed a motion
to dismiss based on insufficiency of service of process. See Fed.R.Civ.P.
12(b) (5). The case was referred to Magistrate Judge Mark D. Fox who
issued a Report and Recommendation that the Court deny Respondent's
motion to dismiss and grant Petitioner an additional thirty days to
effect service. The Referee found that on January 12, 2007, Petitioner
filed in the Court a Verified Petition for the Return of the Child to
Petitioner, a Declaration Establishing the Habitual Residence of the
Child, a Notice of Petition under the Hague Convention, and a Civil
Cover Sheet. On January 27, 2007, a process server went to the dwelling
of Jerome Benjamin, Respondent's boyfriend with whom she and her
children resided, and gave him the following documents: Letter, Summons
in a Civil Case, Civil Cover Sheet, Verified Petition for the Return of
the Children to Petitioner, Declaration Establishing the Habitual
Residence of the Children, Notice of Petition under Hague Convention,
and Preliminary Order in Case Designated to WP4 Calendar. Petitioner
also sent copies of all of the petition documents filed with the Court
to Ury Abraham Leid, Esq., Respondent's attorney of record in the state
matrimonial proceeding (which had since been dismissed).. However, Mr.
Leid was not representing Respondent in the Hague Convention proceeding.
On February 21, 2007, the Court held a conference, the result of which
was the issuance of an Order, on February 28, 2007, barring Respondent
from removing her two minor children from Bronx County, New York. After
receiving a copy of the Order, Respondent retained counsel and brought
this motion to dismiss. The Court noted that while lack of personal
jurisdiction was the substance of Respondent's motion, "technically Rule
12(b)(5) is the proper provision to challenge the mode of delivery or
the lack of delivery of the summons and complaint. Once a defendant
raises a challenge to the sufficiency of service of process, the
plaintiff bears the burden of proving its adequacy." In cases brought
pursuant to the Hague Convention and its implementing legislation,
ICARA, notice is to be given "in accordance with the applicable law
governing notice in interstate child custody proceedings."42 U.S.C. s
11603(c)."In the United States, the Parental Kidnapping Prevention Act
('PKPA') and the Uniform Child Custody Jurisdiction Act ('UCCJA') govern
notice in interstate child custody proceedings."Brooke v. Willis, 907
F.Supp. 57, 60 (S.D.N.Y.1995) (citing Klam v. Klam, 797 F.Supp. 202, 205
(E.D.N.Y.1992)). The PKPA provides that "[b]efore a child custody or
visitation determination is made, reasonable notice and opportunity to
be heard shall be given ...." 28 U.S.C. s 1738A(e). The UCCJA, now known
as the Uniform Child Custody Jurisdiction and Enforcement Act
("UCCJEA"), as adopted in New York State, provides that "[b]efore a
child custody determination is made under this article, notice and an
opportunity to be heard in accordance with the standards of section
seventy-five-g of this article must be given to all persons entitled to
notice under the law of this state ...." N.Y. Dom. Rel. Law s
76-d(1).Section 75-g governs the provision of notice to persons outside
the state and sets forth the manner for providing such notice "[i]f a
person cannot be served with notice within the state." N.Y. Dom. Rel.
Law s 75-g(1). As one practice guide noted, "Notice must be given in New
York in accordance with New York law." Petitioner argued that the
Federal Rules of Civil Procedure govern in cases brought in federal
court, but Fed.R.Civ.P. 4(e) sets forth the methods for service upon
individuals, "[u]nless otherwise provided by federal law."In this
instance, federal law-ICARA-provides the method for service in Hague
Convention proceedings: "in accordance with the applicable law governing
notice in interstate child custody proceedings."42 U.S.C. s 11603(c).
Therefore, Petitioner needed to serve his petition papers upon
Respondent in accordance with New York law. While he effected service in
accordance with Fed.R.Civ.P. 4(e)(2), by leaving the papers with
Respondent's boyfriend at the place where she resides, under New York
law, personal service is effected by both delivery of the summons
"within the state to a person of suitable age and discretion at the ...
dwelling place or usual place of abode of the person to be served and by
... mailing the summons to the person to be served at his or her last
known residence ... such delivery and mailing to be effected within
twenty days of each other."N.Y. C.P.L.R. s 308(2). Respondent claimed,
undisputed by Petitioner, that she never received the petition papers in
the mail at her address. Furthermore, the statute provides that "proof
of such service shall be filed with the clerk of the court designated in
the summons within twenty days of either such delivery or mailing,
whichever is effected later; service shall be complete ten days after
such filing." N.Y. C.P.L.R. s 308(2). Petitioner failed to file proof of
service with the Court. Therefore, Petitioner had not properly served
Respondent with his Hague Convention petition papers, regardless of
whether Respondent received actual notice of the action. In addition,
although not in her motion papers, Respondent's counsel stated at oral
argument on May 16, 2007, that if this action were dismissed for failure
to effect proper service within 120 days of filing the complaint -
presumably referring to Fed.R.Civ.P. 4(m)- then Petitioner would not be
able to avail himself of the Hague Convention's presumptive standard of
return of the children if the petition is made within one year. While
Rule 4(m) mandates an extension of the time for service upon a showing
of good cause by the plaintiff, courts have discretion to extend the
120-day deadline for service even absent a showing of good cause." See
Beauvoir v. United States Secret Serv., 234 F.R .D. 55, 58
(E.D.N.Y.2006) (citing Henderson v. United States, 517 U.S. 654, 662
(1996)). The factors to be considered in deciding whether to grant this
relief are: (1) whether the applicable statute of limitations would bar
the refiled action; (2) whether the defendant had actual notice of the
claims asserted in the complaint; (3) whether the defendant had
attempted to conceal the defect in service; and (4) whether the
defendant would be prejudiced by the granting of plaintiff's request for
relief from the provision. Id. Based on consideration of the foregoing
factors, Judge Fox recommended that the Court exercise its discretion to
extend the Rule 4(m) deadline for service. While the one-year time
period set forth in the Hague Convention is not a statute of limitations
per se, forcing Petitioner to recommence this action beyond that time
period would serve to bar his claim for immediate return of the
children. Furthermore, it was clear that Respondent had actual notice of
the claims set forth in the petition papers since she did, in fact,
receive them, so she would not be prejudiced by granting Petitioner
additional time to effect proper service. The Court adopted Judge Fox's
Report and Recommendation in its entirety.
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