MICHAEL P. SHEA, District Judge.
Plaintiff Joseph Van Leuven ("Van Leuven") brought this suit against Defendant Bjorn Nielsen ("Nielsen"), alleging that Nielsen initiated malicious and vexatious litigation against him in a prior lawsuit. Nielsen moved to dismiss Van Leuven's complaint for improper service and lack of personal jurisdiction. (ECF No. 13.) Because the parties submitted papers related to the motion that raised factual disputes, the Court held an evidentiary hearing on the motion on January 22, 2019. At the hearing, Van Leuven presented a single witness—a private investigator—and introduced two exhibits. Nielsen called no witnesses and presented no exhibits. This memorandum sets forth my factual findings and legal conclusions following the hearing, as a result of which I DENY Nielsen's motion to dismiss.
Van Leuven filed this suit against Nielsen on June 13, 2018. (ECF No. 1.) On June 22, 2018, Van Leuven filed a proof of service form completed by John Corelli, a state marshal. (ECF No. 10.) The form indicated that on June 19, 2018, Corelli left the summons at Nielsen's residence or usual place of abode, noted as 172B Milbank Avenue in Greenwich, Connecticut, with an individual named Carol Gellos ("Gellos"). (ECF Nos. 10, 10-1.) Nielsen moved to dismiss the complaint for lack of service, arguing that Gellos, and not Nielsen, lived at 172B Milbank Avenue at the time of service, and attaching affidavits from both Nielsen and Gellos contesting service. (ECF Nos. 13-1 at 2-3, 13-2, 13-3.) Following Van Leuven's opposition, which included opposing affidavits and public records (ECF Nos. 14, 14-1, 14-2, 14-3, 14-4), and Nielsen's reply brief and declaration (ECF No. 15, 15-1), I ordered that an evidentiary hearing be held on "both the propriety of `abode' service and the existence of diversity jurisdiction," which I found "turn[ed] on disputed issues of fact." (ECF No. 16.)
At the evidentiary hearing, Van Leuven elicited testimony from Michael Hunter ("Hunter"), a licensed private investigator who was hired by Van Leuven's counsel to investigate Nielsen's whereabouts. Van Leuven also successfully moved into evidence two exhibits: (1) a State of Connecticut, Department of Motor Vehicles driving history as of 12/31/2018 showing a Connecticut operator's license for Bjorn Nielsen; and (2) a notarized letter attaching several documents, including Mr. Nielsen's voter registration card with the Town of Greenwich. Nielsen did not elicit any testimony or offer any exhibits, but simply cross-examined Mr. Hunter. Based on the foregoing evidence, I make the following findings of fact:
Nielsen moves to dismiss for improper service under Fed. R. Civ. P. 12(b)(5). "A motion to dismiss pursuant to Rule 12(b)(5) must be granted if the plaintiff fails to serve a copy of the summons and complaint on the defendants pursuant to Rule 4 of the Federal Rules." Sanchez v. Homestead Funding Corp., No. 3:13-CV-01850 MPS, 2015 WL 4487983, at *1 (D. Conn. July 23, 2015) (citation omitted). "[A] district court has considerable procedural leeway in deciding the motion." Id. (citing Perez v. Connecticut Dep't of Correction Parole Div., No. 3:13-CV-150 JCH, 2013 WL 4760955, at *2 (D. Conn. Sept. 4, 2013)). The Court "may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion." Perez, 2013 WL 4760955, at *2 (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). Where the Court chooses to hold an evidentiary hearing, "the plaintiff must establish [proper service] by a preponderance of the evidence." Marine Midland Bank, N.A., 664 F.2d at 904.
Nielsen argues that Van Leuven failed to properly serve him in accordance with Fed. R. Civ. P. 4(e) either by serving his authorized agent or by serving him at his "usual place of abode." (ECF No. 15 at 1-3.) Because I find Van Leuven has shown by a preponderance of the evidence that 172B Milbank Avenue was one of Nielsen's "abode[s]," I conclude that Van Leuven properly served Nielsen under Rule 4(e)(2)(B).
Under Rule 4(e)(2)(B), "an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by. . . leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there." Fed. R. Civ. P. 4(e)(2)(B).
Van Leuven has proven several indicia of permanence by a preponderance of the evidence. First, Hunter testified that Nielsen told him that he owned 172B Milbank Avenue and that the property was his "home" and "residence." Second, Nielsen listed 172 Milbank Avenue as his address on his voter registration card that he submitted on July 14, 2017. And third and finally, Nielsen has a current Connecticut driver's license as of December 31, 2018, which undercuts the notion that he permanently moved to New York. I find that this evidence outweighs other evidence at the hearing suggesting that 172B Millbank Avenue was not Nielsen's abode.
This is not a case where Van Leuven has shown only that Nielsen lived at 172B Milbank Avenue for a short time before moving on elsewhere. See Khan, 360 F. App'x at 204 (finding no indicia of permanence where defendant "stayed at the house for less than a month before moving into a permanent residence prior to the attempted service, without any demonstrated intent to return," and plaintiff "demonstrat[ed] only that the address had at one time been listed for [defendant] in the California court system."). Rather, Nielsen's own statements to Hunter and contemporaneous, public documents listing a Connecticut residence—including a record for a Connecticut driver's license current as of December 31, 2018—reflect that Nielsen still maintains some permanent connection to 172B Milbank Avenue. See Nat'l Dev. Co. v. Triad Holding Corp., 930 F.2d 253, 258 (2d Cir. 1991) (finding sufficient indicia of permanence where defendant was "actually living in the Olympic Tower apartment on [the date of service]," as evidenced by a housekeeper's testimony, and defendant subsequently "listed the Olympic Tower apartment as one of his residences in a bail application submitted" three years later).
Accordingly, because Van Leuven ultimately left a copy of the complaint and summons with Gellos at 172B Milbank Avenue, Nielsen was properly served under Rule 4(e)(2)(B). Accordingly, I DENY Nielsen's motion to dismiss for improper service.
For the foregoing reasons, Nielsen's motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(5) is DENIED. (ECF No. 13.) The parties are directed to file a Rule 26(f) report within 14 days of this order.
IT IS SO ORDERED.