John v. Bridgeport et al
Filing
28
ORDER denying 12 Motion to Dismiss. Please see attached Ruling and Order. Signed by Judge Robert N. Chatigny on 7/15/15. (Reardon, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BARBARA JOHN,
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Plaintiff,
v.
CITY OF BRIDGEPORT, ET AL.,
Defendants.
Case No. 3:14-CV-01484 (RNC)
RULING AND ORDER
Plaintiff Barbara John brings this case against her
employer, the City of Bridgeport, along with a group of
individual defendants, alleging that defendants discriminated
against her because of her age, gender and race.
Defendants have
moved to dismiss (ECF No. 12), arguing that Ms. John has failed
to exhaust one of her claims and did not effect service of
process in a timely manner.
For reasons that follow, defendants'
motion is denied.
I. Background
Plaintiff Barbara John teaches physical education in the
public school system in Bridgeport, Connecticut.
She asserts
that in 2012, she applied for a position as Director of Physical
Education.
Bridgeport's Board of Education did not hire her,
instead selecting a younger white male.
Ms. John further asserts
that she had applied for the same position in 2006 but was not
hired on that occasion either.
She alleges that these denials
1
were motivated by her age, gender and race.
Ms. John brings claims against the City of Bridgeport and
the City's Board of Education, along with Superintendent of
Schools Paul Vallas, Deputy Superintendent Theresa Carroll, and
Sandra Kase, the employee who interviewed Ms. John in 2012.
She
is also proceeding against unnamed "agents, administrators,
managers, supervisors, [and] officials of the Defendant Board."
ECF No. 1, at 9.
Ms. John brings claims under Title VII, 42
U.S.C. §§ 1981, 1983, 1985 and 1986, the Connecticut Fair
Employment Practices Act (CFEPA) and Connecticut common law (for
intentional infliction of emotional distress and breach of
contract).
Ms. John filed suit on October 8, 2014.
Under Federal Rule
of Civil Procedure 4(m), she was obliged to serve the defendants
within 120 days – that is, on or before February 5, 2015.
The
parties agree that the named defendants were not served until
March 27, 2015, forty-nine days after Rule 4(m)'s deadline.
The
unnamed defendants, John Doe, Jane Roe, John Roe and Jane Roe,
still have not been served.
As to these defendants, service is
more than five months tardy.
II. Discussion
Defendants seek dismissal on two grounds.
First, they argue
that Ms. John's CFEPA claim should be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(1) because she has not
2
obtained a Release of Jurisdiction from the Connecticut
Commission on Human Rights and Opportunities (CHRO).
Second,
they argue that Ms. John's complaint should be dismissed without
prejudice in its entirety pursuant to Federal Rule of Civil
Procedure 12(b)(5) because the named defendants were served late,
and the unnamed defendants have not been served at all.1
A. Exhaustion
1
In their reply to plaintiff's opposition to the motion to
dismiss, defendants argue that the Court should disregard
plaintiff's opposition brief (ECF No. 24). This is appropriate,
they urge, because plaintiff missed multiple deadlines and
deviated from the Court's procedural rules in connection with the
filing. Plaintiff's opposition was due on May 8, 2015, but
plaintiff took no action on defendants' motion until May 29, when
she sought an extension of time in which to respond. This
request was granted and the filing date extended to June 11, but
plaintiff missed this deadline too. Plaintiff moved for and was
granted another extension of time; counsel explained that his
computer system had failed on June 2. Plaintiff filed an
opposition on June 17 but failed to serve it on defendants.
The Court has discretion to ignore late-filed papers.
DiStefano v. Law Offices of Barbara H. Katsos, P.C., No. 10 Mc.
564 (JS), 2011 WL 2446318, at *2 (E.D.N.Y. June 15, 2011). But
the delay in this case, though by no means negligible, is not so
egregious as to warrant penalizing Ms. John for counsel's errors.
See, e.g., id. (opposition papers seven months tardy). Moreover,
plaintiff has at least advanced a reason for the delay, even if
it is incomplete (counsel's computer trouble having arisen some
three weeks after opposition papers were due). See id.
("[C]ounsel, in addition to not establishing excusable neglect,
fails to provide any excuse or explanation for the delay."). The
Court's decision on the motion to dismiss will bear seriously on
Ms. John's rights. Except in the most extreme cases it is best
to render such a decision based on more information, not less.
Counsel's failure to respond appropriately to the motion is
unfortunate, but Ms. John should not be held to answer for it.
Accordingly, the following discussion incorporates the arguments
put forth in plaintiff's opposition.
3
Defendants first argue that Ms. John's CFEPA claim should be
dismissed because she fails to allege that she obtained a Release
of Jurisdiction from the CHRO.
See Conn. Gen. Stat. § 46a-101(a)
(complainant may not bring a CFEPA action without obtaining a
Release of Jurisdiction).
But Ms. John apparently did obtain a
Release of Jurisdiction; a copy is appended to her opposition
papers.
ECF No. 25-1.
Defendants' reply does not address the
exhaustion argument, so it appears they no longer wish to pursue
it.
At all events it must be rejected.
B. Failure to Serve
Defendants' second argument is that the complaint should be
dismissed without prejudice because plaintiff did not serve any
defendants until forty-nine days after the expiration of Rule
4(m)'s 120-day window.2
Rule 12(b)(5) permits a party to seek dismissal of an action
for insufficient service of process.
Under Rule 4(m), service
must be effected within 120 days of the complaint's filing.
If a
plaintiff fails to make service within this window but shows good
cause for the failure, the court must "extend the time for
service for an appropriate period."
Fed. R. Civ. P. 4(m).
Whether a plaintiff has shown good cause depends on a weighing of
"plaintiff's reasonable efforts to effect service and the
2
As discussed above, the unnamed defendants have yet to be
served. This issue is discussed separately.
4
prejudice to the defendant from the delay."
AIG Managed Mkt.
Neutral Fund v. Askin Capital Mgmt., LP, 197 F.R.D. 104, 108
(S.D.N.Y. 2000).
A party seeking an extension for good cause
"bears a heavy burden of proof."
Naglieri v. Valley Stream Cent.
High Sch. Dist., No. 05 Civ. 1989 (TCP), 2006 WL 1582144, at *3
(E.D.N.Y. May 26, 2006).
If a plaintiff who has failed to effect service cannot
demonstrate good cause, the court may dismiss the action without
prejudice.
so.
Fed. R. Civ. P. 4(m).
But it is not obliged to do
The court may instead extend the time for service.
v. City of New York, 502 F.3d 192, 193 (2d Cir. 2007).
Zapata
When
determining whether to grant an extension instead of dismissing
the case, the court should consider whether 1) the statute of
limitations would prevent plaintiff from refiling, effectively
converting the dismissal to dismissal with prejudice; 2) the
defendant had actual notice of the claims prior to being served;
3) the defendant tried to conceal the defect in service; and 4)
the defendant will be prejudiced if an extension is granted.
Songhorian v. Lee, No. 11 Civ. 36 (CM), 2012 WL 604323, at *4
(S.D.N.Y. Dec. 3, 2012).
When the statute of limitations would
bar the plaintiff from refiling, the court must carefully
"weigh[] the impact that a dismissal or extension would have on
the parties."
Zapata, 502 F.3d at 197.
Absent a showing of good cause, whether to dismiss or extend
5
the time for service rests in the court's discretion.
The Court
of Appeals "will not disturb a district court's dismissal absent
some colorable excuse raised by the plaintiff" (though this does
not mean a plaintiff is obliged to identify a "colorable excuse"
at the district level).
Good Cause.
Id. at 198 n.7.
The first question is whether Ms. John has
demonstrated good cause for her failure to timely serve the
defendants, a matter to be determined by weighing "plaintiff's
reasonable efforts to effect service" against "the prejudice to
defendant from the delay."
108.
Askin Capital Mgmt., 197 F.R.D. at
She has not.
Plaintiff identifies two reasons for not serving the
defendants within the allowable period.
The first is that she
was "unable to locate one of the defendants critical to
prosecution of her case, Dr. Paul Vallas, who has left the
jurisdiction."
ECF No. 25, at 4.
Plaintiff's counsel therefore
"decided" that he would undertake to serve the rest of the
defendants (except the unnamed ones) only after locating Dr.
Vallas in March 2015.
Id.
This explanation falls well short of
meeting the "heavy burden" of establishing good cause.
2006 WL 1582144, at *3.
Naglieri,
With respect to Dr. Vallas, that
plaintiff was "unable to locate" him because he left Connecticut
tells the Court nothing about whether plaintiff undertook the
required "reasonable efforts" to find him and effect service.
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Askin Capital Mgmt., 197 F.R.D. at 108.
Perhaps counsel searched
high and low for Dr. Vallas; perhaps he did nothing.
The Court
does not know, so it cannot make the required finding.
Compare
Naglieri, 2006 WL 1582144, at *3 (no good cause when counsel did
not know where defendant lived and made no attempt to find her),
with Emerald Asset Advisors, LLC v. Schaffer, 895 F. Supp. 2d
418, 427 (E.D.N.Y. 2012) (good cause when counsel "detailed
substantial efforts that have been made to locate and serve" the
defendant).
I must likewise reject the suggestion that plaintiff
was justified in failing to serve the rest of the defendants
because counsel could not locate Dr. Vallas, and it was
convenient to serve all defendants at once.
The second explanation for deficient service is that Ms.
John, who is "contractually obligated" to pay all costs of
litigation, has been ill and "has used her limited resources to
pay costs associated with illness."
ECF No. 25, at 5.
This
explanation is also insufficient, even assuming a client's
failure to pay litigation costs could in theory constitute good
cause.3
Courts are disinclined to find good cause on the basis
3
Intentionally missing a deadline – and risking dismissal of
an action – due to a client's failure to pay costs raises a
question of ethics. Connecticut Rule of Professional Conduct
1.16(5), which governs the conduct of attorneys before this
Court, see D. Conn. L. R. Civ. P. 83.2(a)(1), permits a lawyer to
withdraw from the representation of a client if "the client fails
substantially to fulfill an obligation to the lawyer regarding
the lawyer's services and has been given reasonable warning that
the lawyer will withdraw unless the obligation is fulfilled."
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of mere assertions that counsel found it inconvenient or
difficult to effect service in a timely manner.
See, e.g., Gibbs
v. Imagimed, LLC, No. 11 Civ. 2949 (ER), 2013 WL 2372265, at *2
(S.D.N.Y. May 30, 2013) (no good cause when counsel asserted that
he was preoccupied with the care of his sick wife and two
daughters).
Plaintiff's counsel is obliged not merely to state
why service was not made, but to explain why, in the
circumstances, service was not possible despite reasonable
efforts.
He has not done so.
With regard to the issue of prejudice resulting from the
delay in effecting service, defendants point out that plaintiff's
Qualifying circumstances can include refusal to pay the lawyer's
fee. But Rule 1.3 demands "reasonable promptness and diligence"
during the pendency of the representation, and the commentary to
Rule 1.5 states that a lawyer must not make a fee agreement
"whose terms might induce the lawyer improperly to curtail
services for the client." These rules, read together, say that a
lawyer may be permitted to withdraw when his client fails to pay,
but he may not simply stop working. See In re Yan, 390 Fed.
Appx. 18, 20–21 (2d Cir. 2010) (attorney who, having accepted
initial retainers from clients, intentionally failed to file
briefs on behalf of those clients who failed to pay additional
fees); Bennett v. Mukasey, 525 F.3d 222, 223 (2d Cir. 2008)
("[W]ithdrawal requires compliance with several obligations to
the client, and Rosenthal made no attempt to withdraw, much less
to comply with withdrawal obligations. Instead, despite a
retainer agreement and acceptance of an initial fee payment, he
neglected his obligations to his client and permitted his
client's appeal to be defaulted and dismissed. Of course, a
retained lawyer can either pursue contractual remedies to collect
unpaid fees or seek leave to withdraw, but he cannot abandon his
client for lack of a promised payment nor neglect his
professional responsibilities until such payment has been
made."); 1. Cyc. of Fed. Proc. § 1:80 (3d ed. 2008).
Accordingly, a client's failure to pay a fee is not good cause
for her lawyer's failure to make timely service.
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claim is based in part on conduct that occurred in 2006.
This
conduct was already long past at the time the period for service
elapsed, and it receded a further forty-nine days before service
was effected.
Some slight prejudice may have resulted from this
delay, and prejudice may fairly be assumed when a defendant is
sued after the statute of limitations has run (an issue discussed
in more detail below).
See Kalra, 2009 WL 857391, at *6.
But
any defendant can make a generalized assertion that the passage
of time associated with plaintiff's failure to serve will inhibit
its ability to put on a defense, and the forty-nine day delay in
this case is a minor slice of the nine years that have passed
since 2006.
Accordingly, I conclude that the delay has caused
defendants little prejudice.
This slight degree of prejudice, however, is to be balanced
against plaintiff's reasonable efforts to effect service.
The
record indicates that plaintiff made virtually no effort to make
service within 120 days of filing.
I therefore conclude that
plaintiff has failed to demonstrate good cause, and the Court is
not obliged to extend the period for service.
Discretionary Extension.
Ms. John having failed to show
good cause, the question is whether a discretionary enlargement
of the service period is appropriate.
This inquiry depends on
four factors: whether 1) the statute of limitations would prevent
plaintiff from refiling, effectively converting the dismissal to
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dismissal with prejudice; 2) the defendant had actual notice of
the claims prior to being served; 3) the defendant tried to
conceal the defect in service; and 4) the defendant will be
prejudiced if an extension is granted.
Songhorian, 2012 WL
604323, at *4.
The parties do not address the first factor.
It seems very
likely, however, that at least some of Ms. John's claims will be
barred if the Court dismisses her complaint without prejudice.
For instance, Ms. John was required to file suit under Title VII
within 90 days of receiving a release of jurisdiction from the
EEOC, see Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d
588, 598 (E.D.N.Y. 2013), and Ms. John obtained her release in
July 2014.
Dismissal for failure to effect service "leaves the
plaintiff in the same position as if the action never had been
commenced," 4 Fed. Prac. & Proc. § 1056 (3d ed. 2008), so a
dismissal here could be dispositive as to the Title VII claim.
As for the other claims, I am unable to say whether dismissal
will effectively be with prejudice.
For instance, the statute of
limitations for § 1983 claims is three years.
Dontigney v.
Paramount Pictures Corp., 411 F. Supp. 2d 89, 91 (D. Conn. 2006).
Some of the conduct underlying Ms. John's § 1983 claim appears to
have occurred in 2012, but exactly when in 2012 is not clear.
I
therefore conclude that this factor favors the plaintiff.
The second factor is whether defendants had actual notice of
10
the claims prior to service.
did.
Nothing in the papers suggests they
Thus, this factors favors the defendants.
The third factor is whether the defendants tried to conceal
the defect in service.
They did not – they raised it promptly in
their motion to dismiss.
The fourth factor is whether the defendants will be
seriously prejudiced if the Court grants an extension.
As
discussed above, if defendants have suffered any prejudice from
the forty-nine day delay, it is slight.
Plaintiff's failure to
timely serve defendants delayed the case for less than two
months, not for years.
See, e.g., Klinker v. Furdiga, No. 5:12
Civ. 254, 2013 WL 1705106, at *4 n.5 (D. Vt. Apr. 19, 2013)
(delay insufficient to show prejudice because "the case was only
a couple months older than it would have been if plaintiff hadn't
been given this extension" (internal quotation marks omitted)).
The case law also suggests that prejudice may be assumed
when a defendant is sued outside the statute of limitations,
Kalra, 2009 WL 857391, at *6, and here at least some of
plaintiff's claims would be time-barred if asserted in a new
complaint.
But this is an odd way to look at things.
The first
factor in the four-factor test breaks for the plaintiff if
dismissal would result in a time-barred claim.
Can it be right
that the fourth factor breaks for the defendant if dismissal
would result in a time-barred claim?
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If so, this test is
seriously flawed – a plaintiff who wins at the first step will
always see her gain cancelled out at the last step.
A sensible
way to navigate this tension is to concede that although a
defendant forced to defend against an old claim may suffer some
prejudice, a plaintiff who is barred from suing through no real
fault of her own suffers a great deal more prejudice.
Accordingly, the Court acknowledges that some prejudice to
defendants is present but concludes it is so slight that this
factor favors the plaintiff.
That adds up to two factors for each party.
For several
reasons, in all the circumstances it is appropriate to resolve
this tie in favor of plaintiff, enlarge the time for service and
permit the case to proceed.
The first is the strong federal
policy in favor of resolving claims on the merits: Ms. John
should not lose all or even some of her claims because counsel
erred.
See Mason Tenders Dist. Counsel Pension Fund v. Messera,
No. 95 Civ. 9341 (RWS), 1997 WL 221200, at *5 (S.D.N.Y. Apr. 1,
1997).
This is especially so when, as in this case, counsel's
missteps have occurred over a relatively short period of time and
plaintiff has not been warned about the possible consequences of
continuing the representation.
The second is that although
counsel has been careless, he has not blithely flouted the
Court's rules.
Service was forty-nine days late, but it
occurred; opposition papers were tardy, but they were filed; the
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reasons for delay are not altogether convincing, but they are
reasons.
See Zapata, 502 F.3d at 199 ("Zapata . . . has advanced
no cognizable excuse for the delay."); Bogle-Assegai, 470 F.3d
498, 508 (2d Cir. 2006) ("Bogle-Assegai conceded that those
defendants had not been properly served in their individual
capacities; but she offered no excuse whatever for the defective
service.
Further, despite having been informed that Appleton and
Newton objected to the improper service at least as early as July
2003, and despite the continued pendency of the lawsuit until
March 2005, Bogle-Assegai never attempted to remedy the defect by
asking the district court to extend her time to effect personal
service.").
Accordingly, the time for service will be extended.
One issue remains.
Plaintiff still has not served any of
the unnamed defendants.
This must occur quickly.
These
defendants are administrators in the Bridgeport school system,
where plaintiff works, and their identities should be
ascertainable without undue difficulty.
Rule 4(m) provides that
if a defendant is not served within 120 days of the complaint's
filing, "the court . . . must dismiss the action without
prejudice against that defendant or order that service be made
within a specified time."
Accordingly, plaintiff is directed to
effect service on the unnamed defendants on or before July 29,
2015.
III. Conclusion
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Accordingly, the motion to dismiss is hereby denied, and
plaintiff is hereby ordered to effect service on the unnamed
defendants on or before July 29, 2015.
So ordered this 15th day of July, 2015.
/s/
Robert N. Chatigny
United States District Judge
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