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Sauer v. Town of Cornwall

Rights Suit Improperly Served, Court Lacks Jurisdiction Over Defendants; Service Extended

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OPINION & ORDER Plaintiff, Martin Sauer (“Plaintiff” or “Sauer”), is a 74-year-old partially blind veteran that commenced this action under 42 U.S.C. §1983 (“Section 1983″) against Defendants Town of Cornwall (“Town”) and Police Chief Todd Hazard (“Chief Hazard”) (collectively, “Defendants”) for various constitutional violations relating to Chief Hazard’s arrest of Plaintiff for giving away sweet corn without a peddler’s permit issued by the Town (even though he had a State-issued peddler’s license). (Complaint (“Compl.”) (ECF No. 1-1).) Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(5) arguing, among other things, that Plaintiff did not properly serve Defendants. For the following reasons, Defendants’ motion is GRANTED, solely on the grounds of improper service, Plaintiff is granted an extension of 60 days to cure his service defects or obtain a waiver of service, and Plaintiff’s claims are not dismissed pursuant to this Opinion. BACKGROUND The following facts are derived from the Complaint or matters of which the Court may take judicial notice, are taken as true, and constructed in the light most favorable to Plaintiff for the purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016). Plaintiff is partially blind 74-year old veteran of the United States Armed Forces that sold his sweet corn from a truck along the side of Route 32 in the Town of Cornwall for over twenty years (approximately between 1992 and 2018). (See Compl.

9-10.) Plaintiff sold his sweet corn pursuant to: (1) a peddler’s license issued by the State of New York in 1992 that conferred a lifetime right to peddle one’s sweet corn (the “Peddler’s License”), and (2) annual peddler’s permits issued by the Town Clerk for the Town of Cornwall between 2011 and 2017 (“Peddler’s Permits”). (Id.

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