Deptula v. Rosen

558 F.Supp.3d 73

Kelcey DEPTULA, Plaintiff,

v.Jonathan ROSEN and Ceramica de Espana, Defendants.

20 Civ. 2371 (JPC)

United States District Court, S.D. New York.

Signed September 3, 2021

Jean Gallieni Bruno, Law Office Of Jean Bruno, Brooklyn, NY, for Plaintiff.

Robert Ethan Steinbuch, Little Rock, AR, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

JOHN P. CRONAN, United States District Judge:

Plaintiff Kelcey Deptula initiated this action on March 17, 2020. She asserts several state law claims against Defendants Jonathan Rosen and his alleged business, Ceramica de Espana, on the basis of diversity jurisdiction: (1) practicing medicine without a license, (2) sexual battery, (3) negligent infliction of emotional distress, (4) fraud, (5) breach of contract, and (6) quantum meruit (i.e., seeking fair value for her services). Dkt. 3. Defendants have moved to dismiss pursuant to Rules 12(b)(2), (3), (5), and (6) of the Federal Rules of Civil Procedure. Dkt. 29. On August 13, 2021, the Honorable Barbara C. Moses issued a Report and Recommendation, recommending that the motion be granted without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(5) for failure to effect proper service of process. Dkt. 58.

1 A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge" in a Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). If a party submits a timely objection to any part of the magistrate judge's disposition, the district court will conduct a de novo review of the contested section. Fed. R. Civ. P. 72(b)(3) ; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If no objections are made, the Court reviews the Report and Recommendation for clear error. See, e.g., Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).

2 The Report and Recommendation, citing both Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), advised the parties that they had fourteen days from service of the Report and Recommendation to file any objections, and warned that failure to timely file such objections would result in waiver of any right to object. Dkt. 58 at 21. No party filed any objections, and the time for making any objections has passed. The parties have therefore waived the right to object to the Report and Recommendation or to obtain appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) ; see also Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).

Notwithstanding this waiver, the Court has conducted a de novo review of the Report and Recommendation, and finds it to be well reasoned and its conclusions well founded. Accordingly, the Court adopts the Report and Recommendation in its entirety.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HON. JOHN P. CRONAN

BARBARA MOSES, United States Magistrate Judge

Plaintiff Kelcey Deptula filed this action on March 17, 2020, and amended her complaint two days later, alleging that defendant Jonathan Rosen verbally abused her, drugged her, and sexually assaulted her during the waning years of a romantic relationship that began in 2011 and ended in March 2017, when she moved out of his New Jersey home. Plaintiff also alleges that Rosen failed to compensate her for work that she performed for his business, Ceramica de Espana (Ceramica). Now before me for report and recommendation is defendants’ "Amended Motion to Dismiss this Frivolous Action with Prejudice" (Third Mtn.) (Dkt. No. 29), made pursuant to Fed. R. Civ. P. 12(b)(2), (b)(3), (b)(5), and (b)(6), for lack of personal jurisdiction, improper venue, insufficient service of process, and failure to state a claim upon which relief can be granted.

Because plaintiff never served either defendant with process in accordance with Fed. R. Civ. P. 4, I recommend that this action be dismissed without prejudice pursuant to Rule 12(b)(5). At the outset of the case, plaintiff's counsel failed to obtain a summons in compliance with Rule 4(a). Thereafter, although counsel made some service efforts, plaintiff herself undermined those efforts by providing an inaccurate address for Rosen and feigning ignorance of his whereabouts. During the same period – unbeknownst to her attorney – plaintiff was once again conducting an amorous relationship with Rosen, from whom she frequently sought both physical intimacy and financial support.

When plaintiff's counsel discovered Deptula's duplicity – some six months after the case was filed – he moved for leave to withdraw, describing her conduct, accurately, as "detrimental" to her case. He later changed his mind about withdrawing, and remains Deptula's attorney of record to this day. Under his stewardship, however, plaintiff never again attempted personal service on either defendant. Nor did she otherwise serve them in accordance with Rule 4(e) (governing service upon individuals) or Rule 4(h) (governing service upon corporations and unincorporated associations). At no time, moreover, did plaintiff request an extension of time within which to serve, or seek leave to serve by alternate means. Seventeen months now having passed without effective service on either defendant, and plaintiff having failed to show good cause or articulate a colorable excuse for the continuing failure, the case should be dismissed.

I. PLAINTIFF'S ALLEGATIONS

In her "Amended Verified Complaint" (Am. Compl.) (Dkt. No. 3), filed on March 19, 2020,¹ plaintiff alleges that she is a citizen of New York; that defendant Rosen is a citizen of New Jersey, residing in Long Branch; that defendant Ceramica is "a business entity in New Jersey," with an address in Lakewood; and that the amount in controversy exceeds $75,000, bringing the case within this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1331. Am. Compl. ¶¶ 1, 8. She further alleges that Rosen is subject to this Court's personal jurisdiction because he engaged in "the acts complained of" in Manhattan, id. ¶¶4, and that venue lies in this District because a "substantial part of the events giving rise to the claims" occurred here. Id. ¶ 5.

According to plaintiff, she met Rosen in 2011. Am. Compl. ¶ 8. He gave her gifts and took her on shopping sprees and lavish vacations. Id. When she moved to New Jersey to be near him, he assisted her financially. Id. He also involved her in his business, Ceramica, using "her likeness on the packaging of his products," which she demonstrated at shows and exhibits. Id. Later, plaintiff moved into Rosen's home, where she lived with him and his two children. Id. The relationship deteriorated in 2016, when Deptula began experiencing headaches "and sometimes felt too ill to get out of bed," and Rosen "started calling her derogatory names." Id. In March 2017, the living situation became "untenable," and she moved out of his home. Id.

Plaintiff asserts six claims, all arising under state law: (1) Practicing Medicine Without a License, see Am. Compl. ¶¶ 9-14 (alleging that Rosen gave her sedatives and contraceptives while telling her, falsely, that they were headache remedies and "sleep medicines"); (2) Sexual Battery, see id. ¶¶ 15-22 (alleging that Rosen engaged in intercourse with plaintiff and took "demeaning, vulgar, and graphic pictures" of her while she was unconscious and unable to consent); (3) Negligent Infliction of Emotional Distress, see id. ¶¶ 23-29 (alleging that as a result of Rosen's extreme and outrageous conduct she suffered severe mental anguish); (4) Fraud, see id. ¶¶ 30-37 (alleging that Rosen lied to her about the nature of the medications he gave her); (5) Breach of Contract, see id. ¶¶ 38-42 (alleging that Rosen breached an oral contract to compensate her for her work on behalf of Ceramica); and (6) Quantum Meruit, see id. ¶¶ 43-46 (alleging, in the alternative, that she is entitled to the fair value of her promotional services). Although most of the alleged misconduct took place in New Jersey, "on many instances" Rosen gave plaintiff medications while "they were staying at the Waldorf Astoria Hotel" in Manhattan. Id. ¶ 11.

II. RELEVANT PROCEDURAL HISTORY

A. Plaintiff Fails to Obtain a Summons in Compliance with Rule 4(a)

On March 17, 2020, plaintiff's attorney, Jean Phillipe G. Bruno, Esq., filed plaintiff's original Complaint (Dkt. No. 1) and requested the issuance of a summons (Dkt. No. 2), but failed to file the federal form ("AO 440 Summons in a Civil Action") designed for this purpose. The Clerk of Court notified him of the error the following day, via ECF, but counsel never corrected it. Consequently, plaintiff never obtained a summons "signed by the clerk" and bearing the Court's seal, as required by Fed. R. Civ. P. 4(a)(1)(F) and (G).²

B. Plaintiff Fails to Serve Either Defendant with Process

Fed. R. Civ. P. 4(m) establishes a 90-day time limit for service of process "after the complaint is filed." By letter dated June 23, 2020 (June 23 Ltr.) (Dkt. No. 14-1), 98 days after plaintiff filed her original Complaint, attorney Bruno advised the Court that she had not yet effected service, despite an attempt to serve Rosen at 55 Ocean Avenue, Apt. 10F, Long Branch, New Jersey, on March 19, 2020, and a simultaneous attempt to serve Ceramica at 747 Vassar Avenue, Lakewood, New Jersey. June 23 Ltr. at 1. According to counsel, access to the Long Branch address was "restricted" on March 19, while the Lakewood facility was "closed." Id.³ Thereafter, "overnight/priority" mail was sent to the Long Branch address on June 12, 2020, but was "returned to sender" and marked "unable to forward." Id. According to attorney Bruno, "The carrier had been told that the plaintiff [sic] no longer lived at that location and that his whereabouts were unknown." Id. Bruno concluded, "Plaintiff believes that the defendants are evading service," and requested that all deadlines be "tolled until defendants can be served." Id. Counsel did not attach any affidavits of service or other admissible...