    07-3709-cv
    Khan v. Khan


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Daniel Patrick Moynihan United
    States Courthouse, 500 Pearl Street, in the City of New York, on
    the 12th day of January, two thousand ten.

    PRESENT:
                   WILFRED FEINBERG,
                   ROBERT A. KATZMANN,
                         Circuit Judges,
                   P. KEVIN CASTEL,*
                         District Judge.

    _______________________________________

    Mohammad Humayun Khan,

                   Plaintiff-Appellant,

                   v.                                  07-3709-cv

    Wajahat M Khan, M.D., Ambreen Ahmed,
    Izhar Ahmed,

                   Defendants-Appellees.

    _______________________________________




            *
         P. Kevin Castel, of the United States District Court for
    the Southern District of New York, sitting by designation.
FOR APPELLANT:       Mohammad Humayun Khan, pro se, Bethpage, N.Y.



     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment and order of the district court are

AFFIRMED.

     Appellant Mohammad Humayun Khan, pro se, appeals from the

judgment of the United States District Court for the Southern

District of New York (Preska, J.), 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 Middleton, 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,


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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 indicia of permanence for Appellee Ambreen

Ahmed.   Her affidavit and supporting documentation 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,
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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.



                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk


                               By:___________________________




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