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finding that the Marshals Service's failure to properly effect service of process constitutes good cause within the meaning of Rule 4 (m)
Summary of this case from Chavis v. ChappiusOpinion
01 Civ. 5844 (SHS)(FM)
April 25, 2002,
REPORT AND RECOMMENDATION
I. Introduction
Maude McCalman commenced this employment discrimination action on June 27, 2001. (Docket No. 2). Pursuant to Fed.R.Civ.P. 4(m), Ms. McCalman was required to serve her complaint on the defendants by October 25, 2001, but she was granted a forty-five day extension to December 9, 2001. (Docket No. 3).
On January 3, 2002, I recommended to Your Honor that Ms. McCalman's complaint be dismissed because the court file contained no record of service or attempted service. (Docket No. 4). On March 14, 2002, Your Honor adopted my Report and Recommendation with respect to all of the defendants except Partners in Care, which was served on January 30, 2002. (See Docket Nos. 7, 8). Ms. McCalman subsequently filed an amended complaint against Partners in Care on or about March 22, 2002. (Docket No. 10).
Defendant Partners in Care has now moved to dismiss Ms. McCalman's original complaint pursuant to Fed.R.Civ.P. 4(m) and 12(b)(5) for untimely service.
Partners in Care also asks the Court to dismiss the amended complaint because the original complaint was not timely served. For the reasons set forth below, the motion should be denied.
II. Recommendation to Deny Motion to Dismiss
Because Ms. McCalman is proceeding in forma pauperis, she was entitled to have the United States Marshals Service serve her summons and complaint, pursuant to Fed.R.Civ.P. 4(c)(2). Moreover, pursuant to Fed.R.Civ.P. 4(m), if a plaintiff shows good cause for her failure to timely serve her summons and complaint, the court must extend the time for service for an appropriate period. "The failure of the Marshals Service to properly effect service of process constitutes 'good cause' within the meaning of Rule 4(m)." Stonescu v. Jablonsky, 162 F.R.D. 268, 270 (S.D.N.Y. 1995) (Sprizzo, J.). Accord Armstrong v. Sears, 33 F.3d 182, 188 (2d Cir. 1994) (failure of Marshals Service to effect timely service did not provide basis for dismissal of complaint where pro se plaintiff was proceeding in forma pauperis); Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986) (if fault for failure to serve lies with Marshals Service, plaintiff has shown good cause under Rule 4(m)).
Ms. McCalman made a request to proceed in forma pauperis which was granted on June 22, 2001. (Docket No. 1).
In her objections to my prior Report and Recommendation, Ms. McCalman represented that she delivered the summons and complaint to the Marshals Service on November 19, 2001, and was told, on or about January 29, 2002, that service by mail had been unsuccessful and that the defendants would be personally served. (See Docket No. 5). This explanation of what occurred is consistent with the return receipt for service on Partners in Care, which indicates that Ms. McCalman provided a copy of the summons and complaint to the United States Marshals Service on November 19, 2001, twenty days prior to the deadline for service. (See Docket No. 7). Consequently, because the Marshals Service had nearly three weeks in which to effect timely service, Ms. McCalman has shown good cause.
Ms. McCalman's time to serve the original complaint should therefore be retroactively extended to the date the Marshals Service delivered the summons and complaint to Partners in Care. See, e.g., Mills v. New York, No. 98 Civ. 1326, 2000 WL 863451, at *3 (S.D.N.Y. June 28, 2000) (Sand, J.) (granting a retroactive extension of time to serve); Mason Tenders Dist. Council Pension Fund v. Messera, No. 95 Civ. 9341, 1997 WL 221200, at *5 (S.D.N.Y. Apr. 1, 1997) (Sweet, J.). Based on that extension, the motion to dismiss the original complaint should be denied, and Ms. McCalman should be allowed to proceed with her amended complaint.
III. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Sidney H. Stein and to the chambers of the undersigned, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Stein. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).