Summary
denying motion to dismiss on service grounds in part because "the delay in service [was] at least in part attributable to communications difficulties involving the [c]ourt and [d]efendant ha[d] not been prejudiced by any delays that may have resulted from [p]laintiff's attempts to effectuate proper service"
Summary of this case from Jones v. Westchester Cnty.Opinion
No. 01 Civ. 7912 (LTS) (RLE)
March 19, 2002
MEMORANDUM ORDER
Pro se Plaintiff Ricardo Castro brings this action against Manhattan East Suite Hotel ("Defendant") under Title VII of the Civil Rights Act of 1964 as amended by 42 U.S.C. § 2000e et seq. ("Title VII"). Defendant moves to dismiss Plaintiff's Complaint for insufficiency of process pursuant to Federal Rules of Civil Procedure 4(m) and 12(b)(5). The Court has reviewed thoroughly Defendant's motion papers. For the following reasons, Defendant's motion to dismiss is denied without prejudice.
Plaintiff in this action is proceeding pro se. On August 16, 2001, the Court granted Plaintiff's request to proceed in forma pauperis. On August 23, 2001, the Complaint was filed with the Clerk's Office and a docket number assigned. The Court's records indicate that the Defendant has not yet been served with a copy of Plaintiff's Complaint.
Rule 4(m) provides in pertinent part:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Fed.R.Civ.P. 4(m) (West 2002). Rule 4(m) "allows the court, in its discretion, to extend the time for service. . . . If the plaintiff has shown good cause, the extension is mandatory." Blessinger v. United States, 174 F.R.D. 29, 30-31 (E.D.N.Y. 1997) (citing Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995)); see Blandford v. Broome County Government, 193 F.R.D. 65, 68 (N.D.N.Y. 2000). The Court evaluates good cause in light of the reasonableness and diligence of a plaintiff's efforts to serve, the prejudice to the defendants from any delay and whether a plaintiff has moved for an enlargement of time to effect service under Federal Rule of Civil Procedure 6(b). Blessinger, 174 F.R.D. at 31; Blandford, 193 F.R.D. at 68; Charles v. New York City Police Department, No. 96 Civ. 9757 (WHP) (THK), 1999 WL 717300 at *6 (S.D.N.Y. Sept. 15, 1999); Echevarria v. Department of Correctional Services, 48 F. Supp.2d 388, 392 (S.D.N.Y. 1999). The Court recognizes that "[i]mplicit in the right to self representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
Plaintiff has been in contact with the Pro Se Office of the Court. As the Court did not have Plaintiff's most recent mailing address, the Court's instructions on service did not reach Plaintiff until after the original Summons and Complaint had expired. According to Plaintiff during this time he contacted the Pro Se Office inquiring as to the status of the mailing of the instructions and was told that there was nothing to indicate whether or not the documents were sent to his new mailing address. See Aff. of Ricardo Castro, dated March 12, 2002. According to the Pro Se Office, Plaintiff has on two occasions sought instructions from them on how to move for an extension of time to serve Defendant with the Summons and Complaint. According to the Pro Se Office, they have assisted Plaintiff; however, Plaintiff's correspondence to the Court did not make clear the request for an extension of time to serve the Complaint. On January 6, 2002, Plaintiff wrote to the Court requesting an adjournment of the pre-trial conference and indicated that he requested the adjournment explaining that "because of [a] change of address [he] did not receive all of the required documents to properly serve the defendants." See Aff. of Ricardo Castro, dated Jan. 6, 2002. The Court adjourned the pretrial conference but did not perceive the request as one for extension of the period for service. On March 12, 2002, Plaintiff again wrote to the Court, urging the Court not to dismiss his Complaint and noting that he was "instructed by the Pro Se Office to request a motion for an adjournment of [the] pre-conference in order to receive the Certificate of Service." See Aff. of Ricardo Castro, dated March 12, 2002.
Giving the pro se litigant the benefit of the doubt see Washington v. James, 782 F.2d 1134, 1138-39 (2d Cir. 1986), the Court finds that Plaintiff made a reasonable effort to move for an extension of time in order to serve Defendant. The Court also finds that the delay in service is at least in part attributable to communications difficulties involving the Court and that Defendant has not been prejudiced by any delays that may have resulted from Plaintiff's attempts to effectuate proper service. Under the circumstances, Defendant's motion to dismiss is denied without prejudice. Plaintiff is directed to serve the Summons and Complaint and file with the Court a Certificate of Service within 60 days of the date of this order. If Plaintiff requires assistance in determining how to serve the Complaint or with other procedural aspects of this litigation, Plaintiff is directed to contact the Pro Se Office of the Court at: Pro Se Office, United States Courthouse, 500 Pearl Street, Room 230, New York, N.Y. 10007. The initial pre-trial conference currently scheduled for March 22, 2002 is adjourned to May 10, 2002 at 3:00 p.m.