DECISION AND ORDER INTRODUCTION Before the Court in this civil rights action is the motion by plaintiff Theodore E. Loria (“Loria”) to amend his complaint, filed on September 24, 2018, ECF No. 11, and Defendants’ cross-motion to dismiss, and in opposition to Loria’s motion to amend, filed on November 1, 2018, ECF No. 14. The Court held a conference with counsel in court on January 31, 2019. The Court assisted counsel in reopening a relevant sealed state criminal case file, and permitted Loria to file a sur-reply. The Court further informed counsel that it would consider all the motions once the sur-reply was filed. On September 6, 2019, Loria filed his sur-reply and the Court now decides both Defendants’ motion to dismiss, ECF No. 4, and Loria’s motion to amend, ECF No. 14. For the reasons stated below, the Court grants Defendants’ motion to dismiss the summons, and denies Loria’s motion to file an amended complaint. BACKGROUND Loria filed his complaint pro se on July 20, 2018, ECF No. 1. The complaint alleges Defendants violated his rights under the Fourth Amendment on or about September 8, 2015, by falsely arresting him, illegally seizing and searching him, falsely imprisoning him, and maliciously prosecuting him. Loria was charged in New York State court with criminal conduct, and, further, a jury acquitted him on January 5, 2017. In this action, Loria also alleged that defendants Michael DeSain (“DeSain”), and Taylor Barth (“Barth”) conspired to violate his civil rights while acting in their capacities as police officers for the Town of Brighton. Summonses in this case were returned on August 2, 2018, showing service was personally made on David Catholdi, a Brighton Police Captain, at an address in Brighton, New York, for all three Defendants. Defendants responded by moving to dismiss the complaint for lack of personal jurisdiction, insufficient process, insufficient service of process, and failure to state a claim. Motion to Dismiss, Aug. 13, 2018, ECF No. 4. By this time, Loria had engaged counsel to represent him, and counsel filed a motion to amend on August 29, 2018, ECF No. 8, and obtained consent from Defendants’ counsel to the issuance of the following Order: TEXT ORDER re 4 MOTION to Dismiss filed by Town of Brighton, New York, Michael DeSain, Taylor Barth, 8 First MOTION to Amend/Correct filed by Theodore E. Loria. Plaintiff has moved, ECF No. 8, to amend the summons and for an extension of time to respond to the defense motion to dismiss. He further represents, ECF No. 8, para. 29, that Defendants do not object to his applications, but do not waive their motion to dismiss, ECF No. 4. Accordingly, it is hereby ORDERED, that Plaintiff’s application to amend the summons pursuant to Fed. R. Civ. P. 4(a)(2), and for an extension, ECF No. 4, is granted, nunc pro tunc, to September 4, 2018. Plaintiff may serve the amended papers and shall have until September 26, 2018, to file a response to the defense motion to dismiss. Any reply to the response will be due on October 5, 2018. Oral argument remains scheduled for January 31, 2019, at 2:15 p.m. Signed by Hon. Charles J. Siragusa on 9/5/2018. (KJA) (Entered: 09/05/2018). Order, September 5, 2018, ECF No. 9. On September 6, 2018, Loria filed proof of service by Fred Burruto, a non-party, who completed affidavits attesting to having made personal service on Mark Henderson, Chief of Police, DeSain and Barth, at their place of business, and that he also: enclosed a copy of same in a first class postpaid envelope bearing the words “Personal & Confidential” properly addressed to defendant at defendant’s actual place of business, at 2300 ELMWOOD AVENUE, ROCHESTER, NY 14618 and deposited said envelope in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State. The envelope did not indicate on the outside thereof, by return address or otherwise, that the communication was from an attorney or concerned an action against the defendant. Affidavits of Service, Sept. 6, 2018, ECF No. 10. The process server also served the Town Clerk of the Town of Brighton. Id. STANDARDS OF LAW Fed. R. Civ. P. 15 — Leave to Amend The Federal Rules of Civil Procedure provide that leave to file an amended complaint “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). However, leave to amend may be denied in the face of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment….” Foman v. Davis, 371 U.S. 178, 182 (1962); see also United States v. Continental Illinois Nat. Bank and Trust Co., 889 F.2d 1248, 1254 (2d Cir. 1989). Fed. R. Civ. P. 12(b)(2) and (b)(5) — Lack of Personal Jurisdiction A plaintiff bears the burden of establishing this Court’s jurisdiction over the defendants. See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). Prior to discovery, a motion to dismiss pursuant to Rule 12(b)(2) may be defeated if the plaintiffs’ complaint and affidavits contain sufficient allegations to establish a prima facie showing of jurisdiction. See id. Moreover, the Court must assume the truth of the plaintiff’s factual allegations, see PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997), even in light of a defendant’s “contrary allegations that place in dispute the factual basis of plaintiff’s prima facie case.” Pilates, Inc. v. Pilates Inst., Inc., 891 F. Supp. 175, 178 (S.D.N.Y. 1995) (emphasis added). Federal Rule of Civil Procedure 12(b)(5) permits dismissal of a complaint for insufficient service of process upon motion by a defendant made prior to the defendant’s filing an answer. “In deciding a Rule 12(b)(5) motion, a court looks to materials outside of the pleadings in determining whether service of process has been insufficient. Moreover, once a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 594 (E.D.N.Y. 2013) (citations omitted) (internal quotation marks omitted). ANALYSIS Lack of Jurisdiction and Improper Service Defendants’ first argument seeks dismissal with prejudice as to DeSain and Barth pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(5) for lack of personal jurisdiction and insufficient service of process. If the Court is without a basis for personal jurisdiction over the two named officers, it is “powerless to proceed to an adjudication.” Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 382 (1937). In an affidavit by Letty Laskowski, Esq., one of Defendants’ lawyers, DeSain and Barth assert that the envelopes used to deliver a copy of the summons and complaint to them were not marked “Personal and Confidential” on the outside as required by New York C.P.L.R. 308(2) (McKinney). Laskowski Decl. 7, Nov. 1, 2018, ECF No. 14-1. Attached to the attorney’s affidavit are copies of the fronts of the two envelopes, postmarked September 7, 2018, showing the lack of the “Personal and Confidential” marking. Id. Loria’s counsel, at oral argument, contended that the envelopes did contain a “Personal and Confidential” marking on the back. The Federal Rules for Service require either personally serving the defendant, leaving a copy of the summons and complaint at the defendant’s dwelling, or delivering them to an agent authorized to accept service. Fed. R. Civ. P. 4(e)(2)(A)-(C). Loria did not use any of these methods. In addition, the Federal Rule permits service using methods approved under state law, here N.Y. C.P.L.R. 308. Under that statute, service may be made, by delivering the summons within the state to a person of suitable age and discretion at the actual place of business…of the person to be served and…by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served…. N.Y. C.P.L.R. 308(2) (McKinney). The requirements of section 308 are strictly enforced. Pesner v. Fried, 166 A.D.2d 512, 512-13 (N.Y. App. Div. 2d Dep’t 1990) (“the requisite mailing did not bear the legend ‘personal and confidential’ on the envelope as required by the statute…. Since the plaintiffs failed to comply with the prescribed conditions, jurisdiction over Shandler was not acquired, and the complaint was properly dismissed as to him….); see also Leab v. Streit, 584 F. Supp. 748, 759 (S.D.N.Y. 1984) (section 308 is construed literally). Loria does not address DeSain’s and Barth’s inadequate service argument in his motion to amend, ECF No. 11. In his response to Defendants’ application to dismiss, ECF No. 15, filed on November 15, 2018, Loria argues that Defendants’ motion to dismiss is a nullity if the Court grants Loria’s motion to amend, and an amended pleading is served, and only then may the Court consider the arguments raised in Defendants’ motion to dismiss, presumably including the argument that Loria has not secured personal jurisdiction over DeSain and Barth. In light of the Supreme Court’s holding in Employers Reinsurance Corp., the Court rejects this argument. Once personal jurisdiction is challenged, it is Loria’s burden to show, prima facie, that jurisdiction exists. See Dorchester Fin. Secs, Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013). Here, although the process server swore that he properly marked the envelopes, Defendants’ exhibits raise a factual question. Because jurisdiction is a threshold question, the Court discussed it extensively at the appearance on January 31, 2019. At that appearance, the Court allowed Loria additional time to ascertain issues pertaining to the legality of Loria’s arrest. Further, the Court informed Loria’s counsel that it may permit re-service if the service was defective, since the courts prefer to resolve matters on the merits. See Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983) (strong policies favor resolution on the merits). However, because of the Court’s determination of the futility of permitting amendment of the complaint in light of the further evidence submitted, and in the interest of judicial efficiency and the “just, speedy, and inexpensive determination” of this action, Fed. R. Civ. P. 1, the Court will address the motion to amend before the factual issue surrounding personal service on two of the defendants is resolved. Motion to Amend Loria’s submissions now before the Court show that this case did involve an arrest warrant. In order to plead a plausible claim for false arrest and imprisonment under New York and Federal law, a plaintiff must allege that the arrest was made without probable cause. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Normally, the presence of an arrest warrant would invalidate claims of false arrest and imprisonment because it shows the existence of probable cause. Dirienzo v. United States, 690 F. Supp. 1149, 1154 (D. Conn. 1988). “An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). In the present case, Loria was arrested on September 8, 2015. Barth signed a misdemeanor information under penalty of perjury on August 29, 2015, accusing Loria of assault in the third degree. Attached to the information was a supporting deposition by the alleged victim, Reginald White (“White”), and a supporting deposition by witnesses Joseph S. Foster, and another by Barth. In his supporting deposition, White stated, inter alia, the following: As I was returning from the back lot to the front showroom I again saw the unknown young white male from the morning approaching me with Teddy Loria at his side. I walked straight ahead witnessing the unknown white male and Teddy Loria splitting around me, with the unknown white male going to my left and Teddy going to my right. In the next instant I was struck in the face with a punch thrown by the unknown white male. The force of the blow and my momentum walking forward caused my feet to go out from under me and resulted in me falling to the asphalt surface, landing on my right elbow, jamming my shoulder. I was on the ground, surprised, dazed and hurt. At that time, Teddy Loria approached me and said “Don’t ever fucking write anything about me again!” The unknown white male and Teddy Loria then turned to walk away. White Supp. Dep. at 2, attached to Sur-Reply as Ex. A, Sept. 6, 2019, ECF No. 26-1. Loria concedes that the Honorable Karen Morris, Town Justice, signed a warrant for his arrest, and that his arrest was pursuant to that warrant. See, e.g., Sur-Reply
