Miller v. Equifax Credit Information Services et al

Filing 34

MEMORANDUM AND ORDER - On January 22, 2010, First Premier filed a letter motion requesting that the Court dismiss Plaintiff's claims, sua sponte, for failure to properly effectuate service. Thereafter, on March 2, 2010, the Marshals Service prop erly served First Premier. In their latest application to the Court, First Premier renews its motion for dismissal, and in the alternative, seeks an extension of time to file its Answer. In this case, First Premier clearly knew about the existence o f this case. Moreover, in its own application, First Premier nowhere mentions any prejudice that it has suffered as a result of the Marshals Service's failure to effectuate service. Finally, it seems unfair to penalize the pro se Plaintiff for n o failure of her own by dismissing her case on this ground. Accordingly, First Premier's motion to dismiss is DENIED, and First Premier is directed to file its Answer within twenty (20) days from the date that this Order is entered. So Ordered by Judge Joanna Seybert on 3/9/10. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

-----------------------------------X MARY MILLER, Plaintiff, B against B EQUIFAX CREDIT INFORMATION SERVICES, EXPERIAN, TRANSUNION, H.S.B.C. BANK, N.A., CAPITAL ONE BANK, N.A., FIRST PREMIER BANK, AMERICAN HONDA FINANCE CORP., MIDLAND CREDIT MANAGEMENT, Defendants.
--------------------------------------X APPEARANCES: For Plaintiff: Mary Miller, Pro Se 207 W. Broadway Inwood, NY 11906-1321 For Defendants: Equifax Credit Information Services Experian Transunion Richard Thomas Marooney, Jr., Esq. King & Spalding 1185 Avenue of the Americas New York, NY 10036 No Appearance Timothy P. Creech, Esq. Kogan Trichon & Wertheimer P.C. 1818 Market St., 30th Floor Philadelphia, PA 19103 No Appearance Zachary Murdock, Esq. Lazer, Aptheker, Rosella & Yedid P.C 225 Old Country Road Melville, NY 11747 Dennis M. Rothman, Esq. Lester, Schwab, Katz & Dwyer 120 Broadway New York, NY 10271-0071 Howard A. Fried, Esq. Segal McCambridge Singer & Mahoney, Ltd 830 Third Avenue, Suite 400

MEMORANDUM & ORDER 09-CV-2499(JS)(WDW)

H.S.B.C. Bank, N.A. Capital One Bank, N.A.

First Premier Bank

American Honda Finance Corp.

New York, NY 10022 Midland Credit Management Thomas A. Leghorn, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker 3 Gannet Drive White Plains, NY 10604 George Edward Spencer, Esq. Jones Day 222 E. 41st Street New York, NY 10017

Experian Information Solutions, Inc.

SEYBERT, District Judge: On June 11, 2009, Plaintiff Mary Miller ("Plaintiff") filed a Complaint and an unsuccessful order to show cause. filed an application to proceed in forma pauperis. Plaintiff also On July 7, 2009,

this Court granted Plaintiff's application, and directed the United States Marshals Service to serve the Complaint upon the Defendants without prepayment of fees. Service via mail on Defendant First

Premier Bank ("First Premier") was unsuccessful. On January 22, 2010, First Premier filed a letter motion requesting that the Court dismiss Plaintiff's claims, sua sponte, for failure to properly effectuate service. Thereafter, on March 2, 2010, In their latest its motion for

the Marshals Service properly served First Premier. application to the Court, First Premier renews

dismissal, and in the alternative, seeks an extension of time to file its Answer.

In

reviewing

a

motion

to

dismiss

for

insufficient

service of process, the Court must determine whether the failure to properly effect service was excused due to good cause and, if not, whether v. the cause York of action Dep't should of be dismissed. Div. of See

Morales

New

State

Labor

Employee

Servs., 06-CV-0899, 2007 U.S. Dist. LEXIS 72172, at *8 (N.D.N.Y. 2

Sept. 27, 2007).

Generally, a pro se litigant proceeding in

forma pauperis is entitled to rely upon the U.S. Marshals to effect service. See FED. R. CIV. P. 4(c)(3); Romandette v.

Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986).

The Second

Circuit has stated that a plaintiff's in forma pauperis status "shift[s] the responsibility for serving the complaint from [the plaintiff] to the court." Wright v. Lewis, 76 F.3d 57, 59 (2d

Cir. 1996); see also Kavazanjian v. Rice, No. 03-CV-1923, 2005 WL 1377946, at *2 (E.D.N.Y. Jun. 6, 2005) (holding that "[f]or plaintiffs proceeding in forma pauperis . . . the Marshal's Office--not the plaintiff--is primarily responsible for

effecting service.") (citing 28 U.S.C. § 1915(a) ("The officers of the court shall issue and serve all process and perform all duties in [in forma pauperis] cases.")). Where a pro se

litigant is proceeding in forma pauperis and Defendant was not properly served, the Court typically considers whether Defendant had actual notice by See the of the lawsuit and whether to Defendant effect 72172, was

prejudiced service.

U.S.

Marshal's 2007 U.S.

failure Dist.

proper at *13

Morales,

LEXIS

(holding that "good cause" existed for plaintiff's failure to properly effect service where, inter alia, Defendant "had actual notice period, of [the] complaint was well not within the by 120 the day service to

and

therefore

prejudiced

failure

effect proper service"). In this case, First Premier clearly knew about the

3

existence of this case.

Moreover, in its own application, First

Premier nowhere mentions any prejudice that it has suffered as a result of the Marshals Service's failure to effectuate service. Finally, it seems unfair to penalize the pro se Plaintiff for no failure of her own by dismissing her case on this ground.

Accordingly, First Premier's motion to dismiss is DENIED, and First Premier is directed to file its Answer within twenty (20) days from the date that this Order is entered.
SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: March 9 , 2010 Central Islip, New York

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