Villavicencio v. New York City Department of Education et al
MEMORANDUM & ORDER granting in part and denying in part 7 Motion to Dismiss. Defendants' motion to dismiss the complaint on the ground of improper service is denied. Plaintiff's claims under New York City Human Rights Law ("NYCHRL&qu ot;), N.Y.C. Admin. Code § § 8-101 et seq., are deemed abandoned. ("Because plaintiff did not address defendant's motion to dismiss with regard to this claim, it is deemed abandoned and is hereby dismissed.")). In accordance with the court's ruling in Lovejoy regarding the propriety of dismissing defendant New York City Department of Education ("DOE") on the basis that no discovery was taken regarding Monell liability, all claims made by Villavicencio against defendant DOE are dismissed as abandoned. Summ J. Hr'g Tr. 9:5-8, Feb. 18, 2014. Defendant DOE will be removed from the caption of the case. Ordered by Judge Jack B. Weinstein on 10/7/2014. (Barrett, C)
U.. DISTRICT COURT E.D.N.V.
* OCT07 2014 *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
[related to 14-CV-0777
- against NEW YORK CITY DEPARTMENT OF
EDUCATION and ELIF GURE-PEREZ,
JACK B. WEINSTEIN, Senior United States District Judge:
This case requires dismissal of some claims as abandoned for failure to brief them on a
dispositive motion. It holds that service is proper in the present case based on adequate service
in a related case, Lovejoy v. Elf Gure-Perez, No. l0-CV-5748.
Christina Villavicencio, a Latina female and former assistant principal of P.S. 316, sues
the New York City Department of Education ("DOE") and Elif Gure-Perez, plaintiffs principal
at the relevant times, for retaliation based on her race and in violation of her First Amendment
right to free speech.
Defendants move to dismiss the complaint for improper service of process. See Fed. R.
Civ. P. 12(b)(5). They also move to dismiss plaintiff's claims under New York City Human
Rights Law ("NYCHRL"), N.Y.C. Admin. Code § § 8-101 et seq., asserting that these claims are
time-barred and that plaintiff failed to file the requisite notice of claim.
Plaintiff cross-moves for an extension of time for service of process beyond 120 days and
opposes the motion to dismiss. Since plaintiff does not address the NYCHRL claims, they are
deemed abandoned. See deVere Grp. GmbHv. Op. Corp., 877 F. Supp. 2d 67, 70 n.3 (E.D.N.Y.
2012) (citing Hanig v. Yorktown Cent. Sch. Dist., 384 F. Supp. 2d 710, 723 (S.D.N.Y. 2005)
("Because plaintiff did not address defendant's motion to dismiss with regard to this claim, it is
deemed abandoned and is hereby dismissed.")).
Defendants' motion to dismiss the complaint on the ground of improper service is denied.
On November 12, 2010, Carolyn Lovejoy, Elizabeth Butler, and Christina Villavicencio
served a state court complaint for race- and age-based discrimination and retaliation. Ms.' Rule
56.1 Statement ¶ 1, No. 10-CV-5748, Dec. 24, 2013, ECF No. 31.
A notice of removal was served transferring the case to the United States District Court
for the Eastern District of New York. Notice of Removal, No. 10-CV-5748, Dec. 10, 2010 5 ECF
No. 1; Mem.,No. 10-CV-5748, Dec. 17, 2010, ECF No. 2.
On January 31, 2014, Butler's and Villavicencio's claims were dismissed from 10-CV5748. Summ J. Hr'g Tr. 4:17-18, Jan. 31, 2014. Based on oral rulings, the assumption of the
parties was that the claims of Butler and of Villavicencio would be incorporated in separate
actions without the need for further service. The court stated:
If, within the next ten days, [Butler and Villavicencio] separately file,. . . the[ir] [cases]
will be treated as if they had been filed with Ms. Lovejoy's case.... You don't have to
[file] separate complaints. Just file the same complaint in each one of them. . . . I don't
want.. . extra paperwork.... I will address each case as if [it] were properly before me
so [you] don't have to come in unnecessarily.
SummJ. Hr'gTr. 4:17-5:12.
At the January hearing, the court considered defendants' motions for summary judgment
regarding Lovejoy, Butler, and Villavicencio. Summ J. Hr' g Tr. 5:13-25:16 (Lovejoy); 25:1738:2 (Butler); 38:3-45:15 (Villavicencio). It reserved decision on the summary judgment
motions with respect to Butler and Villavicencio. Summ J. Hr'g Tr. 47:2-3. The parties
stipulated that the record taken on January 31, 2014 "will apply to all three cases." Summ J.
Hr'g Tr. 45:16-21.
On February 10, 2014, Villavicencio filed her independent complaint. Decl. of K.C.
Okoli dated September 8, 2014 ("Okoli Decl.") ¶ 6, No. 14-CV-0889, Sept. 8, 2014, ECF No.
11-1. No service was made. Okoli Dee!. at ¶ 16.
Based on the discovery by Lovejoy, Butler, and Vil!avicencio, on February 18, 2014, the
court heard arguments regarding the propriety of dismissing defendant DOE from the Lovejoy
action. Summ J. Hr'g Tr. 8:10-10:8, Feb. 18, 2014. At the hearing, counsel for plaintiffs
Lovejoy, Butler, and Villavicencio, conceded that Monell liability did not apply. Summ J. Hr'g
Tr. 8:10-9:9. All 42 U.S.C. §§ 1983 and 1981 claims against defendant DOE in the Lovejoy
action were dismissed on February 21, 2014. Order, No. 10-CV-5748, Feb. 21, 2014, ECF No.
68. After Lovejoy's trial, on March 6, 2014, the jury returned a $110,000 verdict. Minute Entry,
No. 10-CV-5748, Mar. 6, 2014, ECF No. 80.
Defendants DOE and Gure-Perez, on April 25, 2014, filed a notice of appearance in the
instant action, stating that they had not yet been served. Okoli Deci. at ¶J 9, 12. On July 16,
2014, at a conference before the magistrate judge, defendants contended that they had not been
properly served. Okoli Dee!. at ¶IJ 11-12.
Fed. R. Civ. P. 12(b)(5) Standard
Rule 12(b)(5) authorizes dismissal of a complaint for insufficient service of process upon
motion by a defendant made prior to the defendant's filing an answer. "In deciding a Rule
12(b)(5) motion, a court looks to materials outside of the pleadings in determining whether
service of process has been insufficient. Moreover, once a defendant moves to dismiss under
Rule 12(b)(5), the plaintiff bears the burden of proving adequate service." Jordan v. Forfeiture
Support Assoc., 928 F. Supp. 2d 588, 594 (E.D.N.Y. 2013) (citations omitted) (internal quotation
Federal Rule of Civil Procedure 4(m) governs both (1) the dismissal of actions for
untimely service of process and (2) extensions of the time in which service may be effected.
Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir. 2007).
Under Fed. R. Civ. P. 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.
But if the plaintiff shows good cause for the failure, the court must extend the time for
service for an appropriate period.
"Where. . . good cause is lacking, but [a] dismissal without prejudice in combination with the
statute of limitations would result in a dismissal with prejudice," the court weighs the impact that
a dismissal or extension would have on the parties. Zapata, 502 F.3d at 197 (emphasis in
Application of Law to Facts
Service of the summons and the complaint were properly made. See Fed. R. Civ. P.
4(m). The parties were specifically instructed on January 31, 2014 that if plaintiff Villavicencio
filed and docketed her case separately, her complaint "will be treated as [if] it had been filed with
Ms. Lovejoy' s." Summ J. Hr' g Tr. 4:17-5:12, Jan. 31, 2014. As instructed, plaintiff
Villavicencio filed her case within ten days. Compl., No. 14-CV-0889, Feb. 10, 2014, ECF No.
1. This new complaint is treated as having been filed and served on both DOE and Gure-Perez
on December 10, 2010, the date on which a service processor re-served the complaint and a
notice of removal transferring the case then containing the names of these plaintiffs—Butler,
Villavicencio, and Lovejoy—from state court to the United States District Court for the Eastern
District of New York. Notice of Removal, No. 10-CV-5748, Dec. 10, 2010, ECF No. 1.
Defendants' motion to dismiss the complaint on the ground of improper service is denied.
In accordance with the court's ruling in Lovejoy regarding the propriety of dismissing
defendant DOE on the basis that no discovery was taken regarding Monell liability, all claims
made by Villavicencio against defendant DOE are dismissed as abandoned. Summ J. Hr'g Tr.
9:5-8, Feb. 18, 2014. Defendant DOE will be removed from the caption of the case.
Jack B. Weinstein
Senior United States District Judge
Date: October 7, 2014
Brooklyn, New York
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