DECISION AND ORDERINTRODUCTION Plaintiff Roseann Pajak brings this action under the Rehabilitation Act of 1973, 29 U.S.C. §794, against her former employer, Defendant New York State Office of Temporary & Total Disability.1 Defendant seeks dismissal of Plaintiff’s Amended Complaint (ECF No. 6) based on untimely service of process and lack of personal jurisdiction. ECF No. 8. In response, Plaintiff filed a cross-motion requesting that timely service of the Amended Complaint alone be deemed sufficient service or, in the alternative, an extension of time to serve the Summons and Amended Complaint together nunc pro tunc. ECF No. 11. For the reasons set forth below, Defendant’s motion is GRANTED and Plaintiff’s cross-motion is DENIED.RELEVANT BACKGROUNDTo properly address the pending motion, the Court will briefly discuss the procedural history of this action.On November 8, 2016, Plaintiff filed her Complaint against Defendant. ECF No. 1. The Clerk of Court issued a Summons for Defendant on November 9, 2016. ECF No. 2. On May 9, 2017, the Court issued an Order to Show Cause, noting that there was no indication that Plaintiff had caused a Summons and the Complaint to be served on Defendant and directing Plaintiff to explain in writing by May 26, 2017 why the case should not be dismissed under Federal Rule of Civil Procedure 4(m) for failure to effect service within 90 days. See ECF No. 3 at 1.Plaintiff’s counsel timely filed a Declaration in response to the Order Show Cause. ECF No. 4. Plaintiff’s counsel admitted that he had “overlooked the fact that it [sic] the original Complaint was not served” and that there was “no ‘good cause’ to grant [an] extension” of the time for service but nonetheless sought the Court’s discretion in extending the time for service. ECF No. 4 at 2-4. In addition, Plaintiff sought leave to amend her Complaint and attached a proposed amended complaint to the Declaration. See ECF No. 4 at 1.The Court issued a Decision and Order on November 21, 2017 excusing Plaintiff’s failure to timely serve the Summons and Complaint under Rule 4(m). ECF No. 5. The Court noted that, while good cause for an extension was not present, the “equitable considerations” favored Plaintiff — whose claims would be barred by the applicable statute of limitations if dismissed for failure to timely serve. Id. at 2. The Court ordered Plaintiff to file and serve her amended complaint by December 12, 2017 and to file a Certificate of Service with the Court. Id. at 3. Furthermore, the Court directed the Clerk of Court to dismiss the case without further order if Plaintiff failed to file and serve her amended complaint by that deadline. Id.Plaintiff filed the Amended Complaint and a Certificate of Service on December 7, 2017. ECF Nos. 6-7. The Certificate of Service certified “that the First Amended Complaint…was served via hand-delivery on December 7, 2017 upon” Defendant. ECF No. 7 at 1. It did not state whether Defendant had been served with a Summons.On December 28, 2017, Defendant filed a Motion to Dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), (5), and (6) for lack of personal jurisdiction, insufficient service of process, and failure to state a claim. ECF No. 8-1 at 1. The Court issued a Text Scheduling Order, directing Plaintiff to respond by January 29, 2018. On the response deadline, Plaintiff filed a Certificate of Service (ECF No. 10) certifying that the Summons and Amended Complaint had been served upon Defendant. That same day, Plaintiff filed a Cross-Motion (ECF No. 11) requesting that the timely service of the Amended Complaint alone be deemed sufficient service or, in the alternative, an extension of time to serve the Summons and Amended Complaint together nunc pro tunc. Defendant filed a memorandum in opposition to Plaintiff’s cross-motion and in support of Defendant’s motion on February 9, 2018. ECF No. 12.LEGAL STANDARDSI. Rule 12(b)(2)Motions brought pursuant to Rule 12(b)(2) “concern lack of personal jurisdiction, resulting from the failure to serve a defendant pursuant to Rule 12(b)(5).” Chaney v. Vena, No. 9:15-CV-653(TJM/ATB), 2016 WL 9687496, at *3 (N.D.N.Y. Dec. 27, 2016). “On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.” Robinson v. City of Buffalo, 16-CV-00432(MAT), 2017 WL 2021528, at *3 (W.D.N.Y. May 12, 2017) (quoting Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996)). Where the parties have not yet conducted discovery, a plaintiff may defeat a Rule 12(b)(2) motion “based on legally sufficient allegations that the court has jurisdiction.” Id. (internal quotation marks omitted). A court must view such allegations “in the light most favorable to the plaintiff” and resolve any doubts in the plaintiff’s favor. Russo v. Syst. Integrators Inc., No. 2:17-cv-4317 (DRH)(AYS), 2018 WL 4100493 at *3 (E.D.N.Y. Aug. 28, 2018) (citations omitted). However, a court need not consider “conclusory statements, without supporting facts.” Id. (citing Jazini v. Nissan Motor Co. Ltd., 148 F.3d 181, 185 (2d Cir. 1998)).II. Rule 12(b)(5)“A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or lack of delivery of the summons and complaint.” Robinson, 2017 WL 2021528, at *3 (citation omitted). When faced with a 12(b)(5) motion, the plaintiff bears the burden of establishing that service was adequate. Id. In reviewing a 12(b)(5) motion, the court may rely on matters outside the pleadings, including affidavits and supporting materials. Russo, 2018 WL 4100493 at *2.DISCUSSIONI. Rule 4Under Federal Rule of Civil Procedure 4(c)(1), “[a] summons must be served with a copy of the complaint.” Among other things, Rule 4 dictates the content that a summons must contain, Fed. R. Civ. P. 4(a)(1)(A)-(G), the proper procedure to effect service, id. at (e)-(j), and the time limit for service, id. at (m).With regards to procedure, subsection (j)(2) provides that “[a] state, a municipal corporation, or any other state-created governmental organization” may be served by: (1) “delivering a copy of the summons and of the complaint to its chief executive officer;” or (2) “serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.” Fed. R. Civ. P. 4(j)(2). In New York State, service on a state agency must be made by(1) delivering the summons…to the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested,…to the chief executive officer of such agency, and by personal service upon the state in the manner provided by subdivision one of this section.N.Y. CPLR §307(2).As for the time to accomplish service, it is the plaintiff’s responsibility to serve a defendant “within the time allowed by Rule 4(m).” Fed. R. Civ. P. 4(c)(1). In turn, Rule 4(m) provides that:If a defendant is not served within 90 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m). Even where a plaintiff fails to show “good cause,” a district court has discretion to otherwise extend the time for service. See id. (citing Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007)); Gerena v. Korb, 617 F.3d 197, 201 (2d Cir. 2010) (“We have interpreted this rule to give wide latitude to courts in deciding when to grant extensions on time to serve, including permitting courts to grant extensions even absent good cause.”) (citing Zapata, 502 F.3d at 196).II. The Court Declines to Dismiss the Case Based Solely on Its Prior OrderIn the Court’s November 21, 2017 Decision and Order, it extended the time for Plaintiff to effect service until December 12, 2017. Specifically, the Court ordered “that if Plaintiff fails to file and serve the Amended Complaint on Defendant by December 12, 2017, and file a Certificate of Service, the Clerk of Court shall dismiss the case without further order of this Court.” ECF No. 5 at 3. Defendant asserts that Plaintiff failed to effect service as ordered and therefore the “case must be dismissed.” ECF No. 8-1 at 2; ECF No. 12 at 3.In response, Plaintiff’s attorney admits in his Declaration that Plaintiff did not serve a Summons by the December 12, 2017 deadline, but asserts that Plaintiff served the Amended Complaint on Defendant on December 7, 2017 and that this complies with the language of the Court’s order which directed Plaintiff to “file and serve the Amended Complaint.” ECF No. 11-1
