Alleyne v. Goldstein et al

Filing 11

ORDER. For the reasons stated herein, plaintiff's complaint is dismissed without prejudice for plaintiff's failure to comply with Federal Rule of Civil Procedure ("Rule") 4(m) and failure to prosecute and comply with the court 9;s numerous orders pursuant to Rule 41(b). The Clerk of the Court is respectfully requested to enter judgment in favor of defendants, close this case, serve a copy of this order on pro se petitioner at her address, 848 Linden Blvd., Brooklyn, NY 11203, and note such mailing on the docket. Ordered by Judge Kiyo A. Matsumoto on 8/13/2015. (Tsay, Stephanie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARIA ALLEYNE,
Plaintiff,
MEMORANDUM AND ORDER
-against14-CV-6311 (KAM)(CLP)
AGENT ANDREW GOLDSTEIN, AGENT JAMES
MODICO, AGENT CHRISTIAN ANDRETTA,
AGENT JASON MOUNT, AGENT JOSEPH
QUATTROCHI, AGENT DANNY LEE, AGENT
JERRY DINAPOLI, AGENT EUGENE COZZA,
AGENT HEATHER SHAND OMALLEY, SEARGANT
FRANK DiGREGORIO, AGENT MARK DELUCA,
AGENT DONALD McMANN, AGENT EDDIE
ALVARIAN,INSPECTOR DEL GUIDICE, AUSA
ALEXANDER A. SOLOMON, AUSA TONI M.
MELE, AUSA SOUMYA DAYANANDA, and AUSA
PATRICIA NOTOPOULOS,
Defendants.
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MATSUMOTO, United States District Judge
On October 27, 2014, pro se plaintiff Maria Alleyne
(“plaintiff”) filed the instant action against Agent Andrew
Goldstein, Agent James Modico, Agent Christian Andretta, Agent
Jason Mount, Agent Joseph Quattrochi, Agent Danny Lee, Agent
Jerry Dinapoli, Agent Eugene Cozza, Agent Heather Shand
O’Malley, Seargant Frank DiGregorio, Agent Mark Deluca, Agent
Donald McMann, Agent Eddie Alvarian, Inspector Del Guidice, AUSA
Alexander A. Solomon, AUSA Toni M. Mele, AUSA Soumya Dayananda,
and AUSA Patricia Notopoulos (collectively, the “defendants”),
alleging constitutional violations under the Fourth, Fifth and
Sixth Amendments.

(ECF No. 1, Complaint (“Compl.”).)
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Plaintiff Maria Alleyne alleges constitutional
violations arising from an indictment, arrest, and jury trial
for money laundering charges related to the matter United States
v. James, et al., Docket Number 08-cr-888 before the Honorable
Nina G. Gershon in the Eastern District of New York.
Specifically, plaintiff alleges that she was indicted by a
federal Grand Jury for structuring and money laundering charges
on October 6, 2010, and arrested at her home shortly thereafter
on October 14, 2010 pursuant to an arrest warrant.
¶ 16-21.)

(Compl.

After a month-long jury trial, on October 24, 2011,

plaintiff was found not guilty.

(Compl. ¶¶ 23-24.)

Plaintiff alleges that during her October 14, 2010
arrest, her home was unlawfully searched and her property,
including documents relating to an escrow account in Barbados,
was unlawfully seized in violation of the Fourth Amendment.
(Compl. ¶¶ 25-30.)

Plaintiff alleges that the court

subsequently ordered forfeiture of the money in her escrow
account to pay for plaintiff’s legal fees.

(Compl. ¶ 30.)

Plaintiff further alleges that her rights to due process and
equal protection under the Fifth Amendment were violated when
AUSA Natapoulos, AUSA Solomon, and Special Agent Andrew
Goldstein sought money laundering charges against her and when
she was “denied the right to enter into contractual arrangements
for representation, when upon prompting from the AUSA, her
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attorney Michael Young was disqualified from representing her.”
(Compl. ¶¶ 31-38.)

Plaintiff also alleges that she was “denied

due process of her right to her property as the removal of the
money from the escrow account in fact closed the account and
resulted in her loss of the property.”

(Compl. ¶ 38.)

Finally,

plaintiff alleges that she was “denied the right to counsel of
her choice when her attorney, Michael Young, was disqualified”
in violation of her Sixth Amendment right to counsel.

(Compl. ¶

39.)
On December 16, 2014, Magistrate Judge Cheryl L.
Pollak ordered plaintiff to effect proper service of the summons
and complaint upon defendants pursuant to Federal Rule of Civil
Procedure (“Rule”) 4(m).

Judge Pollak warned plaintiff that if

service was not made upon defendants by February 24, 2015, or,
if plaintiff failed to show good cause as to why service had not
been effected, dismissal of the action with prejudice would be
recommended to the court.

(ECF No. 4, Order dated 12/16/14.)

On March 3, 2015, Assistant United States Attorney
(“AUSA”) Melanie D. Hendry submitted a status report, as
requested by the court on February 27, 2015, indicating that
“this Office is not aware of any of the individual defendants
having been personally served with the summons and complaint.”
(ECF No. 6, Status Letter dated 3/3/15.)

AUSA Hendry indicated

that, while plaintiff had filed affidavits of service
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purportedly memorializing service upon the individual
defendants, these affidavits did not establish personal service
upon any defendant and only stated that copies of the summons
and complaint were served upon a docket clerk in the United
States Attorney’s Office (“USAO”).

(Id.)

AUSA Hendry further

advised the court that the USAO “has not been authorized to, and
therefore is unable to consent to, accept service on behalf of
any of the defendants,” and that it was the USAO’s
“understanding that plaintiff has not properly served the
summons and complaint prior to the expiration of her 120-day
deadline to do so.”

(Id.)

On March 9, 2015, Judge Pollak ordered the United
States Attorney’s Office (“USAO”) to provide plaintiff with
information regarding the proper method of service for the
defendants as well as the defendants’ respective addresses.
(ECF No. 7, Order dated 3/9/15.)

Judge Pollak warned plaintiff

that pursuant to Rule 4(m), she had 30 days from the time she
received the information from the United States Attorney’s
Office to effect service on the defendants.

(Id.)

On June 4, 2015, the AUSA Hendry provided a status
update to the court, indicating that on March 24, 2015, the USAO
sent plaintiff a letter via certified mail, providing the
information regarding the proper method of service and addresses
for service upon all individual defendants, with the exception
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of Special Agent Edward Alaverdian, whose address was not known
to the USAO.

(ECF No. 8, Status Letter dated 6/8/15.)

On June 9, 2015, the Judge Pollak ordered plaintiff to
effect service on the defendants by June 22, 2015, or inform the
court by that date whether she wishes to withdraw her claims.
(ECF No. 9, Order dated 6/9/15.)

Judge Pollak again warned

plaintiff that if she failed to comply with the court’s order,
it would recommend that her claims be dismissed for failure to
prosecute pursuant to Rule 41(b).

(Id.)

On June 22, 2015, plaintiff submitted a letter,
requesting an extension of time to effect service upon the
defendants “because [she] did not get the opportunity to serve
the Agents that are based in Washington D.C.”
Letter dated 6/22/15.)

(ECF No. 10,

On July 6, 2015, the court granted

plaintiff’s request for an extension and ordered plaintiff to
effect service by August 5, 2015, or to inform the court whether
she wishes to withdraw her claims.

The court warned plaintiff

that, because the court has provided plaintiff ample time and
multiple extensions to effect service on defendants, her claims
would be dismissed for failure to comply with the court’s July
6, 2015 order.

(Id.)

On August 7, 2015, due to plaintiff’s continued
failure to demonstrate compliance with the court’s orders, the
court again ordered that no later than August 12, 2015,
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plaintiff must file all affidavits or declarations of service
indicating that service was effected on defendants by the
previously ordered date of August 5, 2015.
8/7/15.)

(Order, dated

As of the date of this order, plaintiff has neither

effected service on defendants nor complied with the court’s
numerous orders.
Rule 4(m) provides that if a plaintiff does not effect
service upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or sua sponte, “shall” dismiss
the action without prejudice as to that defendant, unless the
plaintiff shows good cause for the failure.

Fed. R. Civ. P.

4(m); see Perrelli v. Autotote, Inc., 56 F. App’x 18 (2d Cir.
2003).

Here, the 120 day deadline has long passed, and, despite

numerous court orders and generous extensions of time, as well
as specific instructions on how to properly serve defendants,
plaintiff has neither completed proper service on defendants nor
has she offered the court any reason for why she was unable to
properly serve defendants within the time limits provided by
Rule 4(m) and extended by the court.
Further, a plaintiff is obligated to prosecute her
case diligently, and Rule 41(b) authorizes the district court to
dismiss a plaintiff’s case sua sponte for failure to prosecute
or comply with the court’s orders.

See LeSane v. Hall’s Sec.

Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (internal
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citation omitted).

A district court considering dismissal

pursuant to Rule 41(b) must balance five factors: “(1) the
duration of the plaintiff’s failure to comply with the court
order, (2) whether plaintiff was on notice that failure to
comply would result in dismissal, (3) whether the defendants are
likely to be prejudiced by further delay in the proceedings, (4)
a balancing of the court’s interest in managing its docket with
the plaintiff’s interest in receiving a fair chance to be heard,
and (5) whether the judge has adequately considered a sanction
less drastic than dismissal.”

Baptiste v. Sommers, 768 F.3d

212, 216 (2d Cir. 2014) (internal citations and quotation marks
omitted).
id.

No one factor in the analysis is dispositive.

See

The Second Circuit has cautioned that dismissal is “‘a

harsh remedy to be utilized only in extreme situations.’”
LeSane, 239 F.3d at 209 (internal citation omitted).

In

general, pro se parties “should be granted special leniency
regarding procedural matters.”

(Id.)

The first factor weighs in favor of dismissal because
plaintiff has failed to comply with five court orders on
December 16, 2014, March 9, 2015, June 9, 2015, July 6, 2015,
and August 7, 2015.

The second factor also weighs in favor of

dismissal because the court has repeatedly warned petitioner
that her continued failure to comply with the court’s orders
would result in the dismissal of her claims.
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Prejudice to the

defendants, the third factor, may be presumed because petitioner
has unreasonably delayed the progress of this case.

See Blake

v. Payane, No. 08-CV-0930, 2011 WL 7163172, at *2 (S.D.N.Y. Mar.
11, 2011) (citing Lyell Theatre Corp. v. Loews Corp., 682 F.2d
37, 43 (2d Cir. 1982)).

The court has considered the fourth

factor by balancing its interest in managing its docket with the
plaintiff’s interest in receiving a fair chance to be heard and
finds that plaintiff’s utter failure to comply with the court’s
five orders over the course of ten months weighs in favor of
dismissal.

Moreover, the court may dismiss plaintiff’s claims

without prejudice, which would allow plaintiff to pursue her
claims at a later time.

Finally, the court has considered

sanctions less drastic than dismissal and concluded that, given
the duration of Plaintiff’s non-compliance with court orders,
her failure to effect service upon defendants, and her failure
to prosecute her claims despite the numerous opportunities for
her to do so, no lesser sanction would be effective.
Plaintiff’s repeated failure to comply with the court’s orders
indicates that she no longer wishes to pursue her claims against
the defendants.
In the circumstances presented, where a pro se
plaintiff has failed to effectuate timely service, courts have
typically held that dismissal without prejudice is appropriate.
See, e.g., Holton v. City of New York, 133 F.3d 907 (Table), No.
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97–CV-2105, 1998 WL 29825, at *1 (2d Cir. Jan. 27, 1998); Zapata
v. Isabella Geriatric Ctr., No. 12-CV-738, 2013 WL 1762900, at
*2 (S.D.N.Y. Apr. 1, 2013) report and recommendation adopted,
No. 12-CV-738, 2013 WL 1762168 (S.D.N.Y. Apr. 24, 2013); Grant
v. Aurora Loan Servs., No. 08-CV-100, 2008 WL 4326532, at *2
(E.D.N.Y. Sept. 2, 2008).

Accordingly, plaintiff’s complaint is

dismissed without prejudice for plaintiff’s failure to comply
with Rule 4(m) and failure to prosecute and comply with the
court’s orders pursuant to Rule 41(b).

The Clerk of the Court

is respectfully requested to enter judgment in favor of
defendants, close this case, serve a copy of this order on pro
se petitioner at her address, 848 Linden Blvd., Brooklyn, NY
11203, and note such mailing on the docket.
SO ORDERED.
Dated: Brooklyn, New York
August 13, 2015

_____________________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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