Cooney v. Barry School of Law
994 F. Supp. 2d 268
E.D.N.Y2014Background
- Pro se plaintiff (New York resident) sues his former law school (Barry University, Inc., a Florida corporation) under the ADA and the Rehabilitation Act for denial of accommodations and termination from the law program.
- Plaintiff became partially blind in 2011, requested extensions/accommodations, and alleges faculty and program directors refused accommodations, leading to probation and then dismissal.
- Plaintiff served process on Charlene Ford (Director of Student Life / Interim Director of Admissions) at a NYC recruiting fair.
- Defendant moved to dismiss for insufficient service, lack of personal jurisdiction, and improper venue; alternatively asked to transfer to the Middle District of Florida.
- Court found service on Ms. Ford insufficient because she was not a "managing or general agent" of the corporate defendant and quashed service.
- Court found venue improper in the Southern District of New York because defendant resides and the events occurred in the Middle District of Florida; court gave plaintiff 14 days to choose transfer or dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of service under Fed. R. Civ. P. 4 / N.Y. C.P.L.R. § 311(a)(1) | Service on Charlene Ford (a titled "director") was proper service on the corporation | Ford is not an officer, managing or general agent of the corporate defendant; service therefore insufficient | Service quashed: Ford not a managing/general agent; plaintiff failed to effect proper service |
| Proper defendant identity | Plaintiff sued "Barry School of Law a/k/a Dwayne O. Andreas School of Law" | Defendant is Barry University, Inc.; the law school is a college within the university with no separate corporate existence | Court recognized misnaming and treated defendant as Barry University, Inc., reinforcing limited scope of Ford's authority for service analysis |
| Venue under 28 U.S.C. § 1391(b) | Plaintiff filed in S.D.N.Y., citing constraints in litigating elsewhere | Defendant argued events and residence are in Middle District of Florida; S.D.N.Y. is improper venue | Venue improper in S.D.N.Y.; case to be dismissed unless plaintiff elects transfer to Middle District of Florida within 14 days |
| Whether to dismiss or transfer given improper venue & ineffective service | Plaintiff indicated limited resources to litigate in Florida | Defendant sought transfer to Middle District of Florida for convenience | Court declined to sua sponte transfer; offered plaintiff option to request transfer within 14 days, otherwise will dismiss for improper venue |
Key Cases Cited
- Popkin v. Xerox Corp., 204 A.D.2d 704 (N.Y. App. Div.) (service on mid-level manager not reasonable to treat as "managing agent")
- Alexander v. Unification Church of America, 634 F.2d 673 (2d Cir.) (courts may quash service rather than dismiss when proper service likely)
- Grammenos v. Lemos, 457 F.2d 1067 (2d Cir.) (service/quash discretion principles)
- Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737 (2d Cir.) (discretion on dismissal vs. quash and jurisdictional considerations)
- Daniel v. American Board of Emergency Medicine, 428 F.3d 408 (2d Cir.) (venue transfer/dismissal standards)
- Royal & Sunalliance v. British Airways, 167 F. Supp. 2d 573 (S.D.N.Y.) (forum congestion and transfer considerations)