Santiago v. The City of New York et al

Filing 11

MEMORANDUM DECISION AND ORDER, Accordingly, Deft's motion is granted in part and denied in part. Counsels filing of an answer on behalf of both defts with no jurisdictional defenses-an answer that has still not been amended-would constitute caus e for an extension of time to serve. Accordingly, defts motion to dismiss under Rule 4(m) is denied. However, pltff's motion for an extension of time to effect service is at least premature, as the docket still reflects an answer on behalf of Of ficer O'Hea that does not assert any service defect. It is not sufficient for defendants to assert in a motion to dismiss under Rule 4(m) that this answer was a mistake. It is still there on the docket. If they wish to file an amended answer tha t removes Officer O'Hea or adds jurisdictional defense for him, they may move for that relief. However, since the likely result of granting such a motion, if grounds are found upon which to grant it, would be to extend pltff's time to effec t service as a result of this ruling, the Court suggests that the parties resolve these pleading and service issues by stipulation, if further action is necessary in light of this ruling. The Monell claim is therefore dismissed. Pltff may file an ame nded complaint containing such a claim w/in 10 days if he believes he can do so consistent with Rule 11; otherwise, the Court will consider a motion to amend, if plaintiff is so advised, after Officer O'Hea's deposition in which his prior relevant conduct will likely be addressed. So Ordered by Judge Brian M. Cogan on 8/18/2009. (Layne, Monique)