07-3709-cv
Khan v. Khan
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 “SUMMARY ORDER”).
A PARTY CITING 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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 12th day of January, two thousand ten.
PRESENT:
WILFRED FEINBERG,
ROBERT A. KATZMANN,
Circuit Judges,
P. KEVIN CASTEL,*
District Judge.
_______________________________________
Mohammad Humayun Khan,
Plaintiff-Appellant,
v. 07-3709-cv
Wajahat M Khan, M.D., Ambreen Ahmed,
Izhar Ahmed,
Defendants-Appellees.
_______________________________________
*
P. Kevin Castel, of the United States District Court for
the Southern District of New York, sitting by designation.
FOR APPELLANT: Mohammad Humayun Khan, pro se, Bethpage, N.Y.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and order of the district court are
AFFIRMED.
Appellant Mohammad Humayun Khan, pro se, appeals from the
judgment of the United States District Court for the Southern
District of New York (Preska, J.), dismissing his diversity
action, and its order denying his motion for reconsideration. We
assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
As an initial matter, we note that we have jurisdiction to
review both the district court’s final judgment and its order
dismissing Appellant’s timely-filed motion for reconsideration.
See “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir.
2008). However, because Appellant has not raised any substantive
arguments on appeal with respect to the denial of his motion for
reconsideration, we need not address that order. See LoSacco v.
City of Middleton, 71 F.3d 88, 93 (2d Cir. 1995).
We review for abuse of discretion a district court’s
dismissal for failure to serve process. See Zapata v. City of
New York, 502 F.3d 192, 195 (2d Cir. 2007). On a Rule 12(b)(5)
motion to dismiss, the plaintiff bears the burden of establishing
that service was sufficient. See Burda Media, Inc. v. Viertel,
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417 F.3d 292, 298 (2d Cir. 2005) (citing Mende v. Milestone
Tech., Inc., 269 F. Supp. 2d 246, 251 (S.D.N.Y. 2003)).
Service of process may be completed by “leaving a copy of
[the summons and complaint] at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion who
resides there.” Fed. R. Civ. P. 4(e)(2)(B). Although the terms
“dwelling” and “usual place of abode” “have eluded any hard and
fast definition,” we have recognized that “a person can have two
or more dwelling houses or usual places of abode, provided each
contains sufficient indicia of permanence.” Nat’l Dev. Co. v.
Triad Holding Corp., 930 F.2d 253, 257 (2d Cir. 1991) (internal
quotations omitted).
Here, the address at which Appellant attempted to effect
service lacked any indicia of permanence for Appellee Ambreen
Ahmed. Her affidavit and supporting documentation demonstrated
that she stayed at the house for less than a month before moving
into a permanent residence prior to the attempted service,
without any demonstrated intent to return. Appellant did not
meet his burden of proving otherwise, demonstrating only that the
address had at one time been listed for Ambreen Ahmed in the
California court system. Appellant additionally produced no
evidence of Appellee Izhar Ahmed’s connection to the address;
although the record demonstrates that Izhar Ahmed regularly
visited California for weeks at a time, there is no evidence
regarding the frequency or duration of his stays at that address,
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particularly in light of evidence demonstrating that he stayed at
a different address. Accordingly, the district court did not
abuse its discretion in finding that Appellant had not effected
proper service.
Furthermore, while the defense of insufficient service of
process may be waived by a party’s failure to either raise it in
a motion under Rule 12(b) of the Federal Rules of Civil Procedure
or to include it in a responsive pleading, see Fed. R. Civ. P.
12(h)(1), it is clear that, contrary to Appellant’s arguments,
the Appellees raised the claim of insufficient service in their
first responsive pleading, seeking to vacate the default judgment
on that very basis.
We have considered all of Appellant’s remaining arguments on
appeal and find them to be without merit.
For the foregoing reasons, the judgment and order of the
district court are AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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