Opinion
99 Civ. 10856(GEL).
November 21, 2000.
OPINION AND ORDER
The Commissioner of the Social Security Administration moves to dismiss this action for judicial review of a denial of disability benefits, because of plaintiff's failure to comply with the service requirements of FED. R. Civ. P. 4(m).
The Social Security Administration denied plaintiff's final administrative appeal of the denial of his application for disability benefits on August 25, 1999. He filed a civil action in this Court for judicial review of that determination, pursuant to 42 U.S.C. § 405 (g), on October 27, 1999. Due to the dereliction of his attorney, however, plaintiff failed to effect proper service on the Commissioner. On May 17, 2000, this Court, per Hon. Sidney H. Stein, United States District Judge, ordered plaintiff to show cause why service had not been effected within 120 days of filing, as required by Rule 4(m). The order stated, "[i]f plaintiff fails to show good cause for that failure, the action shall be dismissed."
The action was filed on the sixty-third day following the date of the decision. The Commissioner does not dispute that the action was timely filed within 60 days of plaintiff's receipt of the denial.
In response to this order, Plaintiff's counsel completed the required service by May 23, 2000 — a date counsel characterizes as "merely 89 days after the 120 day period for service under Rule 4(m) expired." (Pl. Br. at 5 (emphasis added)). He also filed an affirmation asserting that at the time the complaint had been filed, he had "instructed [his] office to serve the summons and complaint"; that a copy of the complaint was mailed to a local Social Security office in the Bronx; and that counsel "was under the belief" that service had been properly made on the parties required to be served by the federal rules. (Cohen Aff ¶¶ 4-5.) Counsel apologized for the failure, and asked the court, in effect, to extend the period for service by the approximately 90 days necessary to make his eventual service timely. (Id. ¶¶ 6-7.)
Since such a mailing would not constitute proper service in any event, see infra note 3, there is no need to determine the truth of this allegation. The evidence supporting it is a post office receipt for payment for mailing something to that office on November 23, 1999, nearly a month after this action was filed, on which someone has written the plaintiffs name. Though the receipt is for a mailing by certified mail, return receipt requested, no signed return showing receipt by the intended recipient is provided. (See Cohen Aff., Ex. A.)
Under FED. R. Civ. P. 4(c) and 4(i), in a case of this nature service must be made on the Commissioner, the Attorney General of the United States, and the United States Attorney for this district.
This affirmation does not document "good cause" for the failure to effect proper service, but rather negligence on the part of the attorney and his staff. See Gowan v. Teamsters Union, 170 F.R.D. 356, 360 (S.D.N.Y. 1997) ("good cause" is not established where party "offered no excuse for failure to effect timely service"); Mused v. U.S.D.A. Food Nutrition Serv., 169 F.R.D. 28, 32 (W.D.N.Y. 1996) ("'[g]ood cause' is generally found only in exceptional circumstances where the plaintiffs failure to make timely service was the result of circumstances beyond his control"); Romero v. Keeney. 168 F.R.D. 483, 484 (S.D.N.Y. 1996) (failure to effect timely service because of mistaken belief as to proper body upon which to serve summons and complaint does not constitute "good cause"); Goodstein v. Bombardier Capital, Inc., 167 F.R.D. 662, 666 (D. Vt. 1996) (because "[p]laintiffs have not made a reasonable effort to effect service, the Court finds good cause lacking"); Delicata v. Bowen, 116 F.R.D. 564, 566 (S.D.N.Y. 1987) ("[a]ttorney inadvertance or negligence, however, do not constitute good cause" under FED. R. Civ. P. 4(j), now Rule 4(m)); see also McGregor v. United States, 933 F.2d 156, 160 (2d Cir. 1991) (attorney error in failing to serve Attorney General not "good cause" under former FED. R. Civ. P. 4(j)); Hussein v. Sheraton New York Hotel, 100 F. Supp.2d 203, 205, n. 3 (S.D.N Y 2000) (failure of pro se plaintiff to show good cause for not complying with service of process requirements warranted dismissal).
Rule 4(m), however, does not require "good cause" for a district court to extend the 120-day period for service. See Henderson v United States, 517 U.S. 654, 662-63 (1996) (court has discretion to allow plaintiff additional time for service even absent demonstration of good cause). Dismissal here would be a harsh result for the plaintiff. Although dismissal under Rule 4(m) is formally without prejudice, in this case, because the short 60-day time limit on bringing such actions has long since expired, dismissal would effectively end plaintiff's opportunity to seek judicial review. For that reason, I would be inclined to grant plaintiff's request, absent prejudice to the Commissioner.
The Commissioner argues, however, that the Court should exercise its discretion to deny plaintiff's request and dismiss the complaint, because the Commissioner has been prejudiced by the delay. Specifically, the government argues that, due to the volume of records relating to the vast number of such disability claims, the Social Security Administration only retains those records in its central repository for about five months following the decision. (Timlin Aff. ¶ 4.) During that time period, the records are available in the event judicial review is sought. If the Commissioner is not served during that period, the records are shipped to a "staging area," where they are effectively unretrievable for a period of five to nine months. (Id. ¶ 6.) After this period, the records are sent to a Federal Records Center. At that point, retrieval is difficult, but apparently not impossible. (Id. ¶ 7.) According to a declaration submitted by the official in charge of such records,
[o]nce a case file is transferred to a Federal Records Center and has been given a container and accession number, it can be located, and we can request and obtain the file. It usually takes approximately two months from the date of request to receive the file.
(Id. ¶ 10.)
The declaration goes on to state that the government has unsuccessfully tried to locate the file in this case. (Id. ¶ 12.) It does not, however, indicate where the records were sought. The declaration was prepared on August 22, 2000, a date squarely within the ten to fourteen months after the decision when, according to the government s own submission, the file was probably in the inaccessible limbo of the "staging area." That period is now over, and according to the government's chronology, the file is now presumably at a Federal Records Center, from which the declaration indicates that it can be retrieved.
Perhaps it would be wiser for the Commissioner to retain records for more than five months. Since a claimant has over 60 days from the date of the decision to file an action, and another 120 days to serve the summons on officials who presumably do not have personal custody of the records, the record custodian may not receive notice of a lawsuit for more than six months even in some cases in which the claimant acts within the time limits provided by statute and rule. In this case, however, a six- or seven-month retention policy would not have helped plaintiff Here, plaintiff's attorney was inexcusably derelict in failing to effect proper service or to monitor the case closely enough to realize that the government had not responded within what would have been the allowed time had service been effected when he expected. As a result, service was not effected until nearly nine months after the decision. The government is not required to keep records forever, and by the time the Commissioner was notified of this action, the records would have been rendered unavailable, if unavailable they are, even under a more cautious document disposal policy. If plaintiffs failure to comply with Rule 4(m) has made it impossible for the Commissioner to retrieve the file and defend the lawsuit, dismissal is an entirely appropriate remedy.
In view of the above facts, however, we do not yet know whether the file is unretrievable. So far as the record before me shows, the government has not yet made an attempt to retrieve it at a time when the file, according to the government's own description of its practices, would likely be at a searchable location. Depriving plaintiff of his day in court due to his lawyer's negligence, though harsh, may sometimes be the necessary and appropriate action; it may yet prove the appropriate result in this case. But in dealing with its citizens, the government must sometimes walk the extra mile to be fair. And in these disability review cases, the Court of Appeals has reminded us that there is a preference for determination on the merits, rather than dismissal on technicalities. See Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995).
Accordingly, it is hereby
ORDERED, (1) that the Commissioner make a further effort to retrieve the file from the appropriate Federal Records Center;
(2) that the government report to plaintiff and the Court by January 31, 2001, whether the file has been recovered; and
(3) that the motion to dismiss is denied, without prejudice to its renewal on or before January 31, 2001, on a showing by the Commissioner that reasonable efforts to retrieve the file have been made and have proved unavailing. If such a motion is made, the plaintiff will have ten days to respond, and the Commissioner five days to file any reply.
SO ORDERED: