McCarroll v. Douglass et al

Filing 39

ORDER denying in part 27 Motion to Dismiss; denying in part 32 Motion to Dismiss. See attached Order. Signed by Judge Vanessa L. Bryant on 2/14/2012. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DOUGLAS R. MCCARROLL,
PLAINTIFF,

v.
CRYSTAL KIMBALL, ET AL.,
DEFENDANTS.

:
:
: CIVIL ACTION NO. 3:09cv934(VLB)
:
: FEBRUARY 14, 2012
:
:
:

ORDER DENYING IN PART DEFENDANT ATLANTA PSYCHOLOGY ASSOCIATES
AND COMMUNITY SOLUTION INC. AND ELAINE COHEN’S MOTIONS TO DISMISS
[DKT. ## 27 and 32]
The Court denies in part Atlanta Psychological Associates and Community
Solutions Inc. and Elaine Cohen’s motions to dismiss on the basis of Plaintiff’s
failure to comply with Fed. R. Civ. P 4(m) which permits the Court to dismiss an
action if a defendant is not served within 120 days after the complaint has been
filed. The complaint was filed in the instant action on June 20, 2011 and
pursuant to Fed. R. Civ. P. 4(m) the complaint should have been served on or
before October 8, 2011. Plaintiff, who is proceeding pro se, was granted leave to
proceed in forma pauperis on June 14, 2011. In response to the Court’s order to
show cause [Dkt. #15], Plaintiff indicated that he filled out the required USM 285
forms for service and submitted them to the Clerk on October 3, 2011 within the
120 day time period under Rule 4(m). Atlanta Psychological Associates were
served on November 9, 2011 and Community Solutions Inc. and Elaine Cohen
were served on November 29, 2011.
“Rule 4(m) permits the Court to extend the time for service where good
cause for delay exists, and therefore to deny a motion to dismiss where service
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occurred late.” Swan v. Schlein, 441 F.Supp.2d 491, 498 (S.D.N.Y. 2006). Courts
in this circuit have routinely held that good cause is established when the
Marshal’s Office has failed to effect service on behalf of a pro se plaintiff
proceeding in forma pauperis. See Kavazankian v. Rice, 03-cv-1923, 2005 WL
1377946, at *2 (E.D.N.Y. June 7, 2005) (citing the “numerous courts that have held
that good cause under Rule 4(m) is automatically established when the Marshal's
Office has failed to effect service so long as the plaintiff has provided the
information necessary to identify the defendants”). Here, the Plaintiff provided
the necessary forms to the Marshal’s within the 120 day period and therefore has
demonstrated there was good cause for the delay in service. The Court notes
that both Atlanta Psychological Associates and Community Solutions Inc. and
Elaine Cohen have moved to dismiss Plaintiff’s complaint on other substantive
grounds and they are directed to re-file their motions to dismiss on those
grounds within 14 days of this Order for the Court’s review.

IT IS SO ORDERED.

________/s/_________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: February 14, 2012

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