MEMORANDUM & ORDER This case is before me on the motion of defendants Victor Wang and Dara Sneddon to dismiss for insufficient service of process. I referred the motion to Magistrate Judge Steven Locke for Report & Recommendation, and in an R&R dated October 20, 2021, Judge Locke recommended that I deny the motions to dismiss.1 R&R, ECF No. 22. Defendants filed a timely objection. Obj. to R&R 2, ECF No. 27. Having reviewed the R&R, Defendants’ objections, and the fuller record, I adopt the recommendation and deny Defendants’ motions to dismiss. I. Background The Court assumes familiarity with the relevant background and procedural history. Plaintiffs allege that Defendants defrauded them in connection with certain debt and equity investments Plaintiffs made in private businesses controlled by Defendants. See generally R&R 4-8.2 They allege, further, that defendant Wang was motivated to engage in this conduct by his restitution obligations from a prior criminal case in this District. Compl.
27-29, ECF No. 1.3 On June 4, 2021, soon after Plaintiffs filed the complaint, their process server attempted service on both individual defendants ?? Wang and Sneddon ?? at the gated housing complex at which they reside. Process Server Affidavits of Service on Victor Wang and Dara Sneddon, ECF No. 7, 8. According to the process server, the “security guard spoke to Victor Wang, who advised for [the process server] to come back the next day.” Id. The process server returned the next day, but the “security guard spoke to Victor Wang and Victor instructed security not to let [the process server] through.” Id. The process server then served the security guard and instructed him to provide the papers to the individual defendants. Id. The process server also mailed the summons and complaint to the individual defendants by first class mail on June 7, 2021. Id. On June 29, 2021, Wang and Sneddon moved to dismiss the complaint for failure to effectuate proper service under Fed. R. Civ. P. 12(b)(5). Def. Victor Wang’s Mot. to Dismiss, ECF No. 11; Def. Dara Sneddon’s Mot. to Dismiss, ECF No. 12. I referred the motions to Judge Locke. R&R 8. The individual defendants timely objected to Judge Locke’s Report & Recommendation via a joint submission. Obj. to R&R. II. Legal Standard on Review of Report & Recommendation A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §636(b)(1). Within fourteen days after a party has been served with a copy of a magistrate judge’s R&R, the party “may serve and file specific, written objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). When a party submits a timely objection, a court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §636(b)(1)(C). III. Discussion “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Dynegy Midstream Servs. v. Trammochem, 451 F.3d 89, 94 (2d Cir. 2006).4 Plaintiff bears the burden of establishing (by a preponderance) the sufficiency of service at this stage. Khan v. Khan, 360 Fed. App’x 202, 203 (2d Cir. 2010); see also Poppington, LLC v. Brooks, No. 20-CV-8616, 2021 WL 3193023, at *3 (S.D.N.Y. July 27, 2021); First Horizon Bank v. Moriarity-Gentile, No. 10-CV-289, 2013 WL 635243, at *2 (E.D.N.Y. Feb. 20, 2013). Service may be effectuated by following state law. Fed. R. Civ. P. 4(e)(1). Rule 308 of the New York Civil Practice Law and Rules provides that an individual may be served: by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business. N.Y. C.P.L.R. §308(2). A process server’s affidavit of service constitutes prima facie evidence that the defendant was properly served. U.S. Bank, N.A. v. Peralta, 37 N.Y.S.3d 308, 309-10 (App. Div. 2016); Bankers Trust Co. of Cal. v. Tsoukas, 756 N.Y.S.2d 92, 94 (App. Div. 2003). Defendant can refute the affidavit with a sworn denial of receipt of service that contains “specific facts” to rebut the process server’s contentions. Peralta, 37 N.Y.S.3d at 310. Plaintiffs’ process server stated, under penalty of perjury, that he attempted service on both individual defendants on two successive dates, and that he was prevented (in part by Wang) from doing so each time. Process Server Affidavits. The process server proceeded to serve the security guard and advised him to provide the papers to the defendants. Id. The server followed up by sending the papers through certified mail. Id. This, taken together, constitutes prima facie evidence under New York law that the defendant was properly served. See Peralta, 37 N.Y.S.3d at 310. And Wang and Sneddon have not adequately refuted this evidence. They contended, before Judge Locke issued his R&R, that they were not properly served when the process server left the papers with the security guard and mailed them because they do “not reside…in the guard booth” and that their residence is some distance away. Wang Mot. to Dismiss 4; Sneddon Mot. to Dismiss 4. Defendants argued, further, that they do not know the security guard allegedly involved and that they never authorized anyone to accept service on their behalf. Wang Mot. to Dismiss 8; Sneddon Mot. to Dismiss 8. Defendants aver that they never received copies of the summons and complaint either from the security guard or the mail. Wang Mot. to Dismiss
