Lim Tung v. Deutsche Bank Trust Company
1:19-cv-05445
E.D.N.YJan 11, 2022Background
- Pro se plaintiff Hin Y. Lim Tung sued 38 named and 12 fictitiously named defendants challenging the foreclosure of 14-14 30th Road, Astoria, Queens; underlying foreclosure judgment issued by NY Supreme Court (Queens) in 2015.
- Lim Tung filed an Amended Complaint on December 3, 2020 (operative pleading) alleging RICO, state-law and constitutional claims, and seeking declaratory relief.
- Lim Tung attempted service by mailing the Amended Complaint to many defendants and filed an affidavit of service; he did not file any executed summons showing proper personal service.
- Four defendant groups (Rosicki; Margolin & Weinreb; Fay; Lamando) and referee Lynn S. Okin moved to dismiss on multiple grounds between Jan–Sep 2021, chiefly alleging defective service and, as to Okin, immunity.
- Magistrate Judge Bulsara recommends dismissal: the four defendant groups dismissed without prejudice for failure to effect timely/adequate service under Fed. R. Civ. P. 4(m); Okin dismissed with prejudice based on judicial/quasi‑judicial immunity; the entire case recommended dismissed as to all remaining defendants for failure to serve a summons within Rule 4(m)’s 90‑day deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy and timeliness of service under Fed. R. Civ. P. 4(m) / 12(b)(5) | Lim Tung relied on affidavit of mail service; did not substantively rebut service challenges. | Service was by mail only (no personal delivery or authorized agent) and no summons was served; mail alone insufficient under Fed. and NY law. | Claims against moving defendants dismissed without prejudice for failure to effect proper service within 90 days; all other unserved/nonappearing defendants also dismissed under Rule 4(m). |
| Requirement that a summons accompany the complaint | Lim Tung obtained clerk-issued summonses but did not show they were served; affidavit did not establish summons service. | Defendants: no summons was served; attempted mail service without summons is fatally defective. | Court found no summons was served; defect provides additional basis for dismissal. |
| Judicial/quasi‑judicial immunity (Okin) | Lim Tung alleged Okin committed fraud/perjury and defaulted; argued immunity inapplicable. | Okin: entitled to absolute immunity for acts performed as a court‑appointed referee; immunity not overcome by allegations of bad faith. | Okin entitled to immunity for official acts; claims dismissed with prejudice. |
| Jurisdictional effect of defective service and whether to reach merits (Rooker‑Feldman, res judicata, statute of limitations, Rule 9(b)) | Lim Tung pressed substantive claims (RICO, conspiracy, fraud, constitutional violations) and opposed merits arguments. | Defendants raised merits defenses, but primarily moved on service and jurisdictional grounds. | Court did not reach merits or subject‑matter arguments because lack of proper service deprived the court of personal jurisdiction over defendants. |
Key Cases Cited
- Mireles v. Waco, 502 U.S. 9 (1991) (judicial immunity available even if judge acted maliciously or in error; immunity lost only for nonjudicial acts or complete absence of jurisdiction)
- Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) (private individuals performing judicial functions may share immunity)
- Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987) (service of summons is a prerequisite to personal jurisdiction)
- Waldman v. Palestine Liberation Org., 835 F.3d 317 (2d Cir. 2016) (procedurally proper service is required before exercising personal jurisdiction)
- Dickerson v. Napolitano, 604 F.3d 732 (2d Cir. 2010) (plaintiff bears burden to prove adequate service; must make a prima facie showing)
- Gerena v. Korb, 617 F.3d 197 (2d Cir. 2010) (mere receipt of complaint insufficient to establish proper service under NY law)
- Bogle‑Assegai v. Connecticut, 470 F.3d 498 (2d Cir. 2006) (affirming dismissal where plaintiff made no showing of personal service on individual defendants)
- Amnay v. Del Labs, 117 F. Supp. 2d 283 (E.D.N.Y. 2000) (corporations cannot be served by mail alone)
- Arrowsmith v. United Press Int’l, 320 F.2d 219 (2d Cir. 1963) (court must resolve jurisdiction over defendant before addressing merits)