Khan v. Khan, 360 F. App'x 202 (2d Cir. 2010). · Go Syfert
Khan v. Khan, 360 F. App'x 202 (2d Cir. 2010). Cases Citing This Book View Copy Cite
“he defense of insufficient service of process may be waived by a party's failure to either raise it in a motion under rule 12(b) of the federal rules of civil procedure or to include it in a responsive pleading”
78 citation events (78 in the last 25 years) across 7 distinct courts.
Strongest positive: Plunkett v. U.S. Bank National Association (nyed, 2025-05-23)
Treatment trajectory · 2011 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers.
examined Cited as authority (verbatim quote) Plunkett v. U.S. Bank National Association
E.D.N.Y · 2025 · quote attribution · 1 verbatim quote · confidence high
he defense of insufficient service of process may be waived by a party's failure to either raise it in a motion under rule 12(b) of the federal rules of civil procedure or to include it in a responsive pleading
discussed Cited as authority (verbatim quote) THE LAUREL MANAGEMENT GROUP, LLC v. WHITE SHEEP CORPORATION
W.D. Pa. · 2019 · quote attribution · 1 verbatim quote · confidence high
on a rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.
cited Cited as authority (rule) Shaw
N.D.N.Y. · 2026 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed.
cited Cited as authority (rule) Kielly
N.D.N.Y. · 2025 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed.
discussed Cited as authority (rule) Keir
N.D.N.Y. · 2025 · confidence medium
Disposables Int’l, Inc., 221 F. Supp. 3d 428, 432 (S.D.N.Y. 2016) (quoting Cassano v. Altshuler, 186 F. Supp. 3d 318, 320 (S.D.N.Y. 2016)). “[T]he plaintiff bears the burden of establishing that service was sufficient.” Cassano, 186 F. Supp. 3d at 320 (quoting Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010)).
cited Cited as authority (rule) Hancock
S.D.N.Y. · 2025 · confidence medium
On a motion to dismiss for improper service, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Henry v. Doyle
N.D.N.Y. · 2025 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Cassano, 186 F. Supp. 3d at 320 (quoting Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order)).
discussed Cited as authority (rule) Kumar v. Alhunaif
S.D.N.Y. · 2025 · confidence medium
Dismissal for Insufficient Service of Process “When a defendant moves for dismissal for inadequate service of process pursuant to Rule 12(b)(5), the plaintiff ‘bears the burden of establishing that service was sufficient.’” Vega v. Hastens Beds, Inc., 339 F.R.D. 210 , 215 (S.D.N.Y. 2021) (quoting Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order)).
cited Cited as authority (rule) Vernon v. South Oxford Management
D. Conn. · 2024 · confidence medium
Finally, the plaintiff “bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Ripple v. Northumberland County
N.D.N.Y. · 2024 · confidence medium
When a defendant brings such a motion, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).
discussed Cited as authority (rule) Stelzer v. Wang Law Office PLLC
E.D.N.Y · 2024 · confidence medium
Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)). “[T]he court may look beyond the pleadings, including to affidavits and supporting materials, to determine whether service was adequate.” Martin v. Designatronics Inc., 2019 WL 482202 , at *5 (E.D.N.Y.
cited Cited as authority (rule) Sung v. DeJoy
E.D.N.Y · 2024 · confidence medium
Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Hellman v. Jacob
S.D.N.Y. · 2024 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order) “Because a Rule 12(b)(5) motion implicates whether [the court] has jurisdiction, the court looks to matters outside the complaint.” Deptula v. Rosen, 558 F. Supp. 3d 73 , 83 (S.D.N.Y. 2021) (citing Hines v. Roc-A-Fella Recs., LLC, 2020 WL 1888832 , at *1-2 (S.D.N.Y.
discussed Cited as authority (rule) Diaspora v. Columbus Ale House Inc.
E.D.N.Y · 2024 · confidence medium
Co. v. Rosenberg, 771 F. Supp. 2d 254, 260 (E.D.N.Y. 2011) (quoting Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order)).2 “Conclusory statements are insufficient to overcome a defendant’s sworn affidavit that he was not served.” Darden v. DaimlerChrysler N. Am.
cited Cited as authority (rule) Williams v. First Transit/CT Transit
D. Conn. · 2023 · confidence medium
And finally, “[o]n a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010).
cited Cited as authority (rule) Baker v. Coates
S.D.N.Y. · 2023 · confidence medium
On such a motion, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order).
discussed Cited as authority (rule) W.J. Deutsch & Sons Ltd. d/b/a/ Deutsch Family Wine & Spirits v. Diego Zamora, S.A.
S.D.N.Y. · 2023 · confidence medium
When a defendant moves to dismiss for insufficient service of process under Rule 12(b)(5), “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Shapiro v. Jacobson
S.D.N.Y. · 2023 · confidence medium
“Although the terms dwelling and usual place of abode have eluded any hard and fast definition, we have recognized that a person can have two or more dwelling houses or usual places of abode, provided each contains sufficient indicia of permanence.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order).
discussed Cited as authority (rule) Sackett v. Lowe's Home Centers LLC
W.D.N.Y. · 2023 · confidence medium
George’s Univ., LLC, 63 F. Supp. 3d 251, 260 (E.D.N.Y. 2014) (quotation and citation omitted), aff’d, 626 F. App’x 297 (2d Cir. 2015); Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (burden is on plaintiff to establish that service was sufficient); Sunset Homeowners Ass’n, Inc. v. DiFrancesco, No. 1:19-CV-00016 EAW, 2019 WL 1597497 , at *6 (W.D.N.Y.
cited Cited as authority (rule) Peralta v. PCS USA LLC
S.D.N.Y. · 2023 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Callahan v. Hackling
D. Conn. · 2023 · confidence medium
Nor do case citations include subsequent history not relevant for present purposes. content, issuance, and service of a summons.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010). “[T]he plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
cited Cited as authority (rule) Securities and Exchange Commission v. Yin
S.D.N.Y. · 2023 · confidence medium
On such a motion, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Moss v. Brentwood Union Free School District
E.D.N.Y · 2023 · confidence medium
When defendants move to dismiss for lack of proper service, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).
discussed Cited as authority (rule) Wade v. Nitti
W.D.N.Y. · 2023 · confidence medium
George’s Univ., 626 F. App’x 297 (2d Cir. 2015); Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (burden is on plaintiff to establish that service was sufficient); Sunset Homeowners Ass’n, Inc. v. DiFrancesco, No. 1:19-CV- 00016 EAW, 2019 WL 1597497 , at *6 (W.D.N.Y.
cited Cited as authority (rule) Fantozzi v. City of New York
S.D.N.Y. · 2022 · confidence medium
July 15, 2016); Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order).
discussed Cited as authority (rule) Sirius XM Radio Inc. v. Aura Multimedia Corporation
S.D.N.Y. · 2022 · confidence medium
When a defendant moves for dismissal for inadequate service of process pursuant to Rule 12(b)(5), the plaintiff “bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).
cited Cited as authority (rule) Hamza v. Yandik
N.D.N.Y. · 2022 · confidence medium
Likewise, following a Rule 12(b)(5) motion to dismiss, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Barone v. The Lawyers Fund for Clients' Protection
N.D.N.Y. · 2021 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292 , 298 [2d Cir. 2005]).
cited Cited as authority (rule) Connelly v. City of St. Albans, Vermont
D. Vt. · 2021 · confidence medium
Nov. 24, 2020). “(T]he plaintiff bears the burden of establishing that service was sufficient[.]’” Jd. (citing Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010)) (first alteration in original).
discussed Cited as authority (rule) Barone v. The Lawyers Fund for Clients' Protection
N.D.N.Y. · 2021 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292 , 298 [2d Cir. 2005]).
cited Cited as authority (rule) Vega v. Hastens Beds, Inc.
S.D.N.Y. · 2021 · confidence medium
P. 4(b). 360 F. App’x 202, 203 (2d Cir. 2010) (summary order) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).
discussed Cited as authority (rule) Regan v. Village of Pelham
S.D.N.Y. · 2021 · confidence medium
P. 12(b)(4)-(5). “‘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) (quoting Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). “[T]he plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).
discussed Cited as authority (rule) Buon v. Spindler
S.D.N.Y. · 2021 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).
cited Cited as authority (rule) Wilcox v. Fishers Island Ferry District
D. Conn. · 2021 · confidence medium
"On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient." Khan v. Khan, 360 Fed.
discussed Cited as authority (rule) DS v. Rochester City School District
W.D.N.Y. · 2020 · confidence medium
George’s Univ., 626 F. App’x 297 (2d Cir. 2015); Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (burden is on plaintiff to establish that service was sufficient); Sunset Homeowners Ass’n, Inc. v. DiFrancesco, No. 1:19-CV-00016 EAW, 2019 WL 1597497 , at *6 (W.D.N.Y.
discussed Cited as authority (rule) Trombetta v. Novocin
S.D.N.Y. · 2020 · confidence medium
LEGAL STANDARD Rule 12(b)(4) authorizes dismissal for insufficient process, while Rule 12(b)(5) allows a court to dismiss an action for insufficient service of process. “[T]he plaintiff bears the burden of establishing that service was sufficient,” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010), or that she “had good cause in not timely serving the defendant,” AIG Managed Mkt.
discussed Cited as authority (rule) Trombetta v. Novocin
S.D.N.Y. · 2020 · confidence medium
LEGAL STANDARD Rule 12(b)(4) authorizes dismissal for insufficient process, while Rule 12(b)(5) allows a court to dismiss an action for insufficient service of process. “[T]he plaintiff bears the burden of establishing that service was sufficient,” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010), or that she “had good cause in not timely serving the defendant,” AIG Managed Mkt.
cited Cited as authority (rule) Gonzalez v. American Federation of State, County and Municipal Employees, AFL-CIO
D. Conn. · 2020 · confidence medium
Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010); Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005).
discussed Cited as authority (rule) Gonzalez v. New Beginnings for Life, LLC
D. Conn. · 2020 · confidence medium
Conn. Sept. 5, 2013) (“[s]ufficiency of service is a precondition for the court's exercise of jurisdiction over a party and, therefore, constitutes an interrelated ground on which to dismiss a case for lack of personal jurisdiction pursuant to Rule 12(b)(2).”) When proof of service is challenged, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010).
cited Cited as authority (rule) ATX Debt Fund 1, LLC v. Paul
S.D.N.Y. · 2020 · confidence medium
Legal Standard A. Rule 12(b)(5) “On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Astor Chocolate Corp. v. Elite Gold Ltd.
S.D.N.Y. · 2020 · confidence medium
Here, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (S.D.N.Y. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).
cited Cited as authority (rule) Hines v. Roc-A-Fella Records, Inc.
S.D.N.Y. · 2020 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
cited Cited as authority (rule) Redd v. Federal National Mortgage Association
E.D.N.Y · 2020 · confidence medium
Co. v. Rosenberg, 771 F. Supp. 2d 254, 260 (E.D.N.Y. 2011) (quoting Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order)).
cited Cited as authority (rule) Davenport Bliss v. Restaurant Brands International, Inc.
W.D.N.Y. · 2019 · confidence medium
Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (summary order).
discussed Cited as authority (rule) Felix v. The City of Poughkeepsie
S.D.N.Y. · 2019 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005) (citation omitted).
discussed Cited as authority (rule) Red Fort Capital, Inc. v. Guardhouse Productions LLC
S.D.N.Y. · 2019 · confidence medium
P., states that “a complaint may be dismissed for insufficient service of process.” On a Rule 12(b)(5) motion, “plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
discussed Cited as authority (rule) Emiabata v. Farmers Insurance Corporation Ins. Co. (2×)
D. Conn. · 2019 · confidence medium
Service of Process “On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005).
discussed Cited as authority (rule) Sterling v. Securus Technologies, Inc.
D. Conn. · 2019 · confidence medium
Service of Process “On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).
discussed Cited as authority (rule) Cassano v. Altshuler
S.D.N.Y. · 2016 · confidence medium
“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir.2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir.2005) (citing Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y.2003))).
cited Cited as authority (rule) Ahluwalia v. St. George's University, LLC
E.D.N.Y · 2014 · confidence medium
Nov. 6, 2014) (Spatt, J.) (citing Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir.2010)).
Mohammad Humayun KHAN, Plaintiff-Appellant,
v.
Wajahat M. KHAN, M.D., Ambreen Ahmed, Izhar Ahmed, Defendants-Appellees
07-3709-cv.
Court of Appeals for the Second Circuit.
Jan 12, 2010.
360 F. App'x 202
Mohammad Humayun Khan, Bethpage, NY, pro se.
Feinberg, Katzmann, Castel.
Cited by 66 opinions  |  Unpublished

SUMMARY ORDER

Appellant Mohammad Humayun Khan, pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Preska, /.), dismissing his diversity action, and its order denying his motion for reconsideration. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

As an initial matter, we note that we have jurisdiction to review both the district court’s final judgment and its order dismissing Appellant’s timely-filed motion for reconsideration. See “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir.2008). However, because Appellant has not raised any substantive arguments on appeal with respect to the denial of his motion for reconsideration, we need not address that order. See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.1995).

We review for abuse of discretion a district court’s dismissal for failure to serve process. See Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir.2007). On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient. See Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir.2005) (citing Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y.2003)).

Service of process may be completed by “leaving a copy of [the summons and complaint] 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). Although the terms “dwelling” and “usual place of abode” “have eluded any hard and fast definition,” we have recognized that “a person can have two or more dwelling houses or usual places of abode, provided each contains sufficient indicia of permanence.” Nat’l Dev. Co. v. Triad Holding Corp., 930 F.2d 253, 257 (2d Cir.1991) (internal quotations omitted).

Here, the address at which Appellant attempted to effect service lacked any indi-cia of permanence for Appellee Ambreen Ahmed. Her affidavit and supporting doc[*204] umentation demonstrated that she 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. Appellant did not meet his burden of proving otherwise, demonstrating only that the address had at one time been listed for Ambreen Ahmed in the California court system. Appellant additionally produced no evidence of Appellee Izhar Ahmed’s connection to the address; although the record demonstrates that Izhar Ahmed regularly visited California for weeks at a time, there is no evidence regarding the frequency or duration of his stays at that address, particularly in light of evidence demonstrating that he stayed at a different address. Accordingly, the district court did not abuse its discretion in finding that Appellant had not effected proper service.

Furthermore, while the defense of insufficient service of process may be waived by a party’s failure to either raise it in a motion under Rule 12(b) of the Federal Rules of Civil Procedure or to include it in a responsive pleading, see Fed.R.Civ.P. 12(h)(1), it is clear that, contrary to Appellant’s arguments, the Appellees raised the claim of insufficient service in their first responsive pleading, seeking to vacate the default judgment on that very basis.

We have considered all of Appellant’s remaining arguments on appeal and find them to be without merit.

For the foregoing reasons, the judgment and order of the district court are AFFIRMED.