Opinion
No. 11 Civ. 36 (CM)
12-03-2012
ROYA SONGHORIAN, Plaintiff, v. MELISSA LEE, FLORINA CHUY, SELINA CHAN, STELLA ENG, MEMORIAL SLOAN-KETTERING CANCER CENTER, Defendants.
BY ECF TO ALL COUNSEL BY FIRST CLASS MAIL TO PRO SE PLAINTIFF
DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS
:
I. INTRODUCTION
On January 4, 2011, Plaintiff Roya Songhorian ("Plaintiff") sued Melissa Lee ("Lee"), Fiorina Chuy ("Chuy"), Selina Chan ("Chan"), Stella Eng ("Eng") (collectively, the "Individual Defendants"), and Memorial Sloan-Kettering Cancer Center (the "Center") (the Center and the Individual Defendants, collectively, are the "Defendants"), alleging that they discriminated against her, subjected her to a hostile work environment, deprived her of proper training, and retaliated against her on the basis of her race and national origin, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.; the New York State Human Rights Law ("NYSHRL"), NY. Exec. Law § 290, et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101, et seq. Plaintiff served the summons and complaint upon the Defendants on June 1, 2012.
On June 22, 2012, the Defendants filed a motion to dismiss without prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(5), for untimely service of process under Federal Rule of Civil Procedure 4(m).
For the reasons discussed below, the motion to dismiss is DENIED.
II. BACKGROUND
A. The Parties
Plaintiff is a Middle Eastern woman employed by the Center from December 2008 (Chase Decl. ¶ 12, Ex. A) to April 2009. (Id. at ¶ 15, Ex. A)
Defendant Memorial Sloan-Kettering Cancer Center ("the Center") is a cancer center focused on both patient care and cancer research, with facilities throughout the tri-state area. (Plaintiff's Aug. 2, 2012 Reply at 2)
Defendants Melissa Lee ("Lee"), Fiorina Chuy ("Chuy"), and Selina Chan ("Chan") are all registered pharmacists (RPh) employed by the Center. (Chase Decl. ¶ 9, Ex. A)
Defendant Stella Eng ("Eng") is the Associate Director of Pharmacy at the Center. (Id. at ¶ 10, Ex. A)
B. Plaintiff's Allegations
Plaintiff alleges that she was deprived of proper training, subjected to false accusations, retaliated against, and unlawfully terminated as a result of discrimination on the basis of her race and national origin in violation of her state and federal constitutional rights. (Chase Decl. ¶¶ 2-3, Ex. A) Plaintiff is Middle Eastern, and the Individual Defendants are all of South East Asian descent. (Id. at ¶3, Ex. A)
C. Procedural History
Plaintiff filed this lawsuit on January 4, 2011. (Plaintiff's Jul. 9, 2012 Reply at 2; Docket #1) As outside counsel for the Center, Defendant's attorney monitors filings against the Center. (Chase Decl. at 2) Defendant's counsel became aware of Plaintiff's filing, and, in January 2011, informed the Center to be on alert for service of process. (Id.) At this time, the Center's attorney had no contact with the individual Defendants, had not been retained by them as counsel, and did not make the individual Defendants aware of potential service. (Id. at 3) On October 14, 2011, this Court issued an Order for an Initial Pretrial Conference to be held on November 18, 2011. (Docket #3) The Center's attorney appeared at the Pretrial Conference "[i]n an effort to monitor the action" and informed the Court that the Center had not been served. (Chase Decl. at 2) Plaintiff failed to appear at the November conference, and claimed that her "failure to contact the court and appear for Initial pretrial Conference on November 18, 2011 [was] due to [ ] illness and seeking medical treatment prior to November 18, on November 18, and after." (Plaintiff's Aug. 7, 2012 Reply at 1)
On March 19, 2012, this Court scheduled a Status Conference for May 4, 2012. (Docket #4) The Calendar Notice specified that "[a]ny scheduling difficulties must be brought to the attention of the Court in writing and faxed to Chambers." (Id.) In April 2012, Plaintiff called the Court and stated that during "this" time, she was not able to hire a Process Server. (Plaintiff's Aug. 7, 2012 Reply at 2) It is unclear whether the Plaintiff meant the time between the November 2011 conference and the May 2012 conference, or from the time of her January 2011 filing until the time of her call to the Court in April 2012. Plaintiff then faxed a letter to the Court on April 28, 2012, stating that she was not able to deliver the summons in the required time frame "due to the different locations & [sic] schedules of the defendants." (Plaintiff's Aug. 7, 2012 Reply, Ex. 10) In her August 7, 2012 Reply, Plaintiff explained that the Center has more than 10,000 employees in the tri-state area. (Id. at 2) Two of the individual Defendants work in the Pharmacy Administrative office, one of the individual Defendants works at the Breast Cancer pharmacy, and one of the individual Defendants works at the "main building in [the] satellite pharmacy," and all of the individual Defendants "have different time schedules." (Id.) Plaintiff then thanked the Court for "the adjournment of the Conference and extended [sic] the time," presumably the time for service of process. (Id.) The conference was not further adjourned, nor was there an extension of time for service of process explicitly granted to the Plaintiff, and the Status Conference still occurred on the scheduled date.
The Plaintiff did not appear at the May 4, 2012 Status Conference. Again, the Plaintiff did not contact the Court to explain her absence or to request a rescheduled time, later claiming that "[i]t was Plaintiff's understanding that a hearing would be set and a judge would determine if this would go forward with procedural discovery. Plaintiff was not aware that she was required to file a response regardless." (Plaintiff's Jul. 9, 2012 Reply at 2) The Center's attorney did, however, appear that day "for the purpose of monitoring the action," stated that the Center still had not been served, and asked the Court to consider dismissing the case since the Plaintiff appeared to have abandoned her claims, as shown by the lack of service as of that date. (Chase Decl. at 2) There is no indication that the Center's counsel was aware of Plaintiff's April 28, 2012 fax to the Court regarding her inability to find a Process Server and her apparent intent to still pursue her employment discrimination claims.
On May 14, 2012, the Court issued an Amended Order stating that no proof of service of the summons and complaint had been filed as to any defendant, and giving plaintiff 30 days to file proof of service or provide the Court "with a justifiable excuse for failing to file." (Docket #6) On June 1, 2012, Plaintiff served the Center and the Individual Defendants at the Center's Human Resources ("HR") Department. (Plaintiff's Aug. 7, 2012 Reply, Ex. 9) Proof of summons was filed with the Court on June 6, 2012. (Docket #7) Service was executed on all Defendants over 500 days after Plaintiff filed her Complaint. (Docket #1)
On May 4, 2012 (the day of the Status Conference), the Court had issued an Order that mistakenly provided that the defendant had 30 days to file proof of service with the Clerk of the Court. The Amended Order of May 14, 2012 corrected this to state that the plaintiff had 30 days to file proof of service.
The same attorney who had been monitoring the case on behalf of the Center is representing the Individual Defendants as well, but this arrangement was not made until after the individuals were served on June 1, 2012. The Center's counsel, Jones Day, claims that its employees had no previous contact with the Individual Defendants about the existence of this lawsuit until after service was made. (Chase Decl. at 3) The Individual Defendants told the Center's counsel that they had no knowledge of the lawsuit or of any claims against them until they were informed by the Center's representatives in June 2012 that they had been served with summons and complaints at the Center's HR office. (Id.)
This Motion to Dismiss was filed on June 22, 2012 on behalf of all Defendants. (Docket #10) Plaintiff filed a Reply to Defendant's Motion to Dismiss on July 9, 2012. (Docket #14) Defendants filed a Reply Memorandum of Law on July 18, 2012. (Docket #15) Plaintiff then filed a sur-reply on August 7, 2012. (Docket #17)
III. DISCUSSION
A. Standard on a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5)
Rule 4(m) of the Federal Rules of Civil Procedure requires that a plaintiff must serve a copy of the summons and complaint on all defendants within 120 days of filing the complaint. See Fed. R. Civ. P. 4(m). Failure to do so may result in dismissal of the action. See id.; see also Murphy Bros. Inc. v. Michetti Pipr Stringing Inc., 526 U.S. 344, 350 (1999) (holding that proper service of process is a prerequisite to a court's exercise of personal jurisdiction over defendant). Accordingly, insufficiency of service of process is an appropriate ground for dismissal of a complaint. See Fed. R. Civ. P. 12(b)(5). Thus, when a defendant moves to dismiss for insufficiency of service of process, the plaintiff bears the burden of proving adequate service. See Mende v. Milestone Tech., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003) (citations omitted).
A court may extend a plaintiff's time for service upon a showing of good cause, or where it finds a discretionary extension to be appropriate. See Fed. R. Civ. P. 4(m); Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999). However, neglect and inadvertence are generally not sufficient to support a finding of good cause. See Bakal v. Ambassador Const., 94 Civ. 584 (JSM), 1995 WL 447784, at *2 (S.D.N.Y. 1995) ("[C]ourts agree that mere inadvertence or attorney neglect do not suffice [to establish good cause]"); see also McGregor v. United States, 933 F.2d 156, 160 (2d Cir. 1991) (stating that good cause will not be found where the omission is the product of inadvertence, neglect, mistake or misplaced reliance). A court will find good cause to extend the time for service only in "exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control." Eastern Refractories Co., 187 F.R.D. at 505 (S.D.N.Y. 1999) (quoting National Union Fire Ins. Co. v. Sun, 93 Civ. 7170 (LAP), 1994 WL 463009, at *3 (S.D.N.Y. Aug. 25, 1994); see also Spinale v. United States, 03 Civ. 1704 (KMW) (JCF), 2005 WL 659150, *3 (S.D.N.Y. 2005) ("In order to establish good cause for failure to effect service in a timely manner, a plaintiff must demonstrate that despite diligent attempts, service could not be made due to exceptional circumstances beyond his or her control").
In considering whether a plaintiff has shown good cause, courts weigh "the plaintiff's reasonable efforts to effect service and the prejudice to the defendant from the delay." AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000)
Even in the absence of good cause, however, the court has discretion to extend the time for service of the complaint. See Zapata v. City of New York, 502 F.3d 192, 193 (2d Cir. 2007) ("We join several other circuits and hold that district courts may exercise their discretion to grant extensions under Rule 4(m) absent a showing of good cause."); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 222 F.R.D. 79, 80 (S.D.N.Y. 2004) ("[D]istrict courts in appropriate circumstances may grant relief under [Rule 4(m)] notwithstanding the lack of good cause."). Moreover, the Advisory Committee Notes to Rule 4(m) explicitly provide that the Court is authorized "to relieve a plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good cause shown." See, e.g., Rupert v. Metro-North Commuter R .R., 95 Civ. 4283 (DC), 1996 WL 447745, at *2 (S.D.N.Y. Aug. 7, 1996).
When deciding whether to exercise discretion and extend the time for service of process, courts consider: "(1) whether the applicable statute of limitations would bar [a] refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiff's request for relief from the provision." Eastern Refractories Co., 187 F.R.D. at 506.
In this case, Plaintiff has offered no excuse that would suffice to explain or excuse her failure to serve the Defendants with process for 500 days after the filing of her lawsuit. Not even applying the lenient standards applicable to a litigant proceeding pro se, the four standards set forth in Eastern Refractories counsel in favor of allowing untimely service as a discretionary matter.
First, the statute of limitations would most likely bar a refiled action. Plaintiff's claims sound in employment discrimination, and her Title VII and 42 U.S.C. § 1983 ("Section 1983") claims are what vest this court with jurisdiction. Title VII has a short statute of limitations; an action must be filed within 90 days after the plaintiff receives a right to sue letter from the EEOC, or it will be time barred, regardless of when the allegedly discriminatory acts took place. This action was filed almost two years ago; Plaintiff could not file a timely federal employment discrimination action today. "The fact that plaintiff's claims may be time-barred does not require us to exercise our discretion in favor of plaintiff." Eastern Refractories Co., 187 F.R.D. at 506. However, "[c]ourts have consistently considered the fact that the statute of limitations has run on a plaintiff's claim as a factor favoring the plaintiff in a Rule 4(m) analysis." AIG Managed Mkt. Neutral Fund, 197 F.R.D. at 109. "The rationale for this principle is that dismissal under these circumstances would extinguish potentially meritorious claims without there being an opportunity to have them adjudicated on the merits." Id. at 109-10; see also Mason Tenders Dist. Council Pension Fund v. Messera, 95 Civ. 9341 (RWS), 1997 WL 221200, at *5 (Apr. 1, 1997); Rupert, 1996 WL at *2.
Whether Plaintiff could file a new Section 1983 action, which is her only other federal claim, depends on when the actions complained of took place - something that is difficult to ascertain from the pro se complaint - but the statute of limitations for Section 1983 actions in this Circuit is three years, see Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 331 (2d Cir. 1997) (observing that "the statute of limitations for a claim under § 1983 that accrued in New York is three years"), so no allegedly discriminatory action that predated December 2009 would be actionable today.
The Defendant did not keep the deficiency in service a secret. Indeed, lack of service was brought to the court's attention at two separate pre-trial conferences, on November 18, 2011 and May 4, 2012. (Chase Decl. at 2). Plaintiff failed to appear at both conferences; she had filed letters prior to the second conference in which she offered her unconvincing excuse for failing to serve any of the Defendants (including the Center). So Plaintiff was fully aware that service was deficient and that the court was prepared to dismiss the case on that basis.
However, once Plaintiff was advised by the May 14, 2012 order that she had 30 days to file proof of service, she served the Defendants and filed the proof of service within the period given. It is true that the order did not explicitly give Plaintiff 30 days to "serve and file proof of service," but one fair reading of the order allows Plaintiff to effect service and file her proof of service within thirty days, and this court will not penalize Plaintiff for so reading the order.
Finally, Plaintiff proceeds pro se, and "district courts should be especially hesitant to dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant." Buckley v. Doha Bank Ltd., 01 Civ. 8865 (AKH), 2002 WL 1751372 (S.D.N.Y. July 29, 2002) (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996)).
For the foregoing reasons, Defendants' motion to dismiss is denied. The Clerk of the Court is instructed to close this motion and to remove No. 11 Civ. 36 (CM) from the list of pending motions in my docket.
We will conference this case on December 14, 2012 at 11 AM. This time I will accept no excuses. Either Plaintiff shows up at the conference, or her case WILL BE DISMISSED, with prejudice. Failing to show up at three conferences will establish to the satisfaction of this court that Plaintiff has no intention of prosecuting this case. Dated: December 3, 2012
/s/_________
U.S.D.J. BY ECF TO ALL COUNSEL BY FIRST CLASS MAIL TO PRO SE PLAINTIFF