Clemmons v. Holder et al

Filing 5

MEMORANDUM AND ORDER: By motion dated 1/22/2014 and docketed 7/27/2014, pro se plaintiff Joan E. Clemmons ("plaintiff") submitted a motion for the recusal of the Honorable Robert M. Levy and objections to a 1/8/2014 Order issued b y Judge Levy. Plaintiff's 4 motion is denied in its entirety, and Judge Levy's 3 Order of 1/8/2014 is affirmed. The Clerk of Court is requested to mail a copy of this Order to plaintiff at the address listed on the docket sheet and to note service on the docket. SO ORDERED by Judge Kiyo A. Matsumoto, on 2/3/2014. C/mailed. (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT

* FEB 0 3 2014

EASTERN DISTRICT OF NEW YORK

SRoOKLYN OFFIce

..

------------------------------------X
JOAN E. CLEMMONS,
MEMORANDUM AND ORDER

Plaintiff,

13-CV-7229 (KAM)

- against ERIC H. HOLDER, United States
Attorney General, et al.,
Defendants.

------------------------------------x
MATSUMOTO, United States District Judge:

By motion dated January 22, 2014 and docketed July 27,

2014, pro se plaintiff Joan E. Clemmons ("plaintiff") submitted
a motion for the recusal of the Honorable Robert M. Levy and
objections to a January 8, 2014 order issued by Judge Levy.
("Pl. Mot.," ECF No.4.)

Magistrate Judge Levy's order states,

in relevant part, that, pursuant to Federal Rule of Civil
Procedure 4(m), if service of the summons and complaint is not
made upon defendants by April 18, 2014, Judge Levy will, absent
a showing of good cause, recommend that the action be dismissed
without prejudice.

(ECF No.3.)

Plaintiff's motion challenges

Judge Levy's authority to issue the aforementioned order, as
well as the court's authority to dismiss an action based on lack
of service.

Finally, plaintiff requests, based on the

contentions in her motion, that Judge Levy recuse himself, and,
additionally, that the undersigned recuse herself.

(Pl. Mot. 4-

5.)

For the reasons set forth below, plaintiff's motion is

denied, and Judge Levy's order is affirmed.
Plaintiff's argument that Judge Levy acted outside the
bounds of his authority in issuing the January 8 order is
incorrect.

Judge Levy's statement in his order that he was

assigned all pre-trial matters in this case is correct as a
matter of law and the court's local rules.

Title 28 U.S.C.

§

636 provides that "a judge may designate a magistrate judge to
hear and determine any pretrial matter pending before the
court," with limited exceptions not relevant here.
§

28 U.S.C.

636 (b) (1) (A). Under the Local Civil Rules, magistrate judges

in the Eastern District are automatically "assigned to each case
upon the commencement of the action" and may issue or modify
scheduling orders.

Local Civil Rules 16.2, 72.2, available at

https://www.nyed.uscourts.gov/sites/default/
files/local rules/localrules.pdf.

"Except in multi-district

cases and antitrust cases, a Magistrate Judge so assigned is
empowered to act with respect to all non-dispositive pretrial
matters unless the assigned District Judge orders otherwise."
Local Civil Rule 72.2.

For dispositive matters, such as

involuntary dismissal of an action, a magistrate judge may
submit to the district judge "proposed findings of fact and
recommendations for [those matters'] disposition."
636(b) (1) (B).
2

28 U.S.C.

§

Judge Levy was randomly assigned to this case.

He

thus has authority to handle pretrial matters, including service
of process and discovery, and to make recommendations to the
undersigned regarding issues that could dispose of this case.
The January 8 order, therefore, was within Judge Levy's
authority pursuant to the United States Code and this court's
local rules.
Plaintiff also disputes the court's ability to dismiss
the case without prejudice for lack of service because, she
contends, "the court .

before it has proof of validity of

the service of summons or of waiver of service of summons has no
personal jurisdiction over the defendants.

H

(Pl. Mot. 3.)

Plaintiff's conclusion is incorrect. As Judge Levy's order
notes, pursuant to Federal Rule of Civil Procedure 4(m), if "a
defendant is not served within 120 days after the complaint is
filed, the court-- on motion or on its own after notice to the
plaintiff-- must dismiss the action without prejudice against
that defendant or order that service be made within a specified
time.

H

It is correct that a court cannot exercise personal
jurisdiction over a defendant who has not been served.

Omni

Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97,
104

(1987).

However, this does not mean that a complaint that

has not been served cannot be dismissed under Rule 4(m).
3

To the

contrary, where a court does not have personal jurisdiction over
a defendant due to lack of service (and the time for service has
expired and has not been extended), the court cannot hear the
claims against that defendant and must dismiss.
Amnay v. Del Labs, 117 F. Supp. 2d 283, 287

See, e.g.,

(S.D.N.Y. 2000).

For these reasons, plaintiff's arguments are unavailing and her
complaint could properly be dismissed without prejudice absent
timely service, a showing of good cause as to why service could
not be effected, or an extension of time to serve defendants at
the court's discretion.

In any event, the question of dismissal

for lack of service in this case is not currently before the
court.

Plaintiff indicates that she has begun the process of

serving the defendants or obtaining waivers of service.
Mot. 3.)

(Pl.

The deadline for such service (or for a showing of

good cause for a delay in service) is April 18, 2014, leaving
plaintiff time to continue her efforts to serve the defendants
in this action.
Finally, plaintiff requests the recusal of Judge Levy
and of the undersigned.

Title 28

u.s.c.

§

455 states that

"[a]ny justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned."

§

455(a).

A

determination on a motion for recusal lies within the discretion
of the judge whose impartiality is being questioned.

4

Local 338,

RWDSU v.

Trade Fair Supermarkets, 455 F. Supp. 2d 143, 144

(E.D.N.Y. 2006)

(citing United States v. Oluwafemi, 883 F. Supp.

885, 890 (E.D.N.Y. 1995)).

Therefore, any motion for Judge Levy

to recuse himself is properly put to Judge Levy.

The court

notes, however, as indicated above, that Judge Levy's order was
not improper and that a "judge has an affirmative duty .
to disqualify himself unnecessarily."

. not

Da Silva Moore v.

Publicis Groupe, 868 F. Supp. 2d 137, 150 (S.D.N.Y. 2012)

(quoting Nat'l Auto Brokers Corp. v. Gen. Motors Corp., 572 F.
2d 953, 958 (2d Cir. 1978))

(alterations in the original).

Plaintiff has not identified any reason that the
undersigned should recuse herself.

Because plaintiff has not

stated how the undersigned's impartiality might reasonably be
questioned in this case, recusal is unnecessary and this portion
of plaintiff's motion is denied.
For the foregoing reasons, plaintiff's motion is
denied in its entirety, and Judge Levy's order of January 8,
2014 is affirmed.

The Clerk of Court is requested to mail a

5

copy of this order to plaintiff at the address listed on the
docket sheet and to note service on the docket.

SO ORDERED.

Dated:

Brooklyn, New York
February 3, 2014

__________ /s _____________________
KIYO A. MATSUMOTO
United States District Judge

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