Rosano v. Adelphi University et al

Filing 10

MEMORANDUM & ORDER: SO ORDERED that Plaintiff's 8 and 9 request for an extension of time to serve the Summons and Complaint is DENIED, and, accordingly, Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE. The Clerk of the Court is directed to mark this matter closed, to terminate all pending motions, and to mail a copy of this Memorandum and Order to the prose Plaintiff. CM to pro se plaintiff on 12/6/2011. Ordered by Judge Joanna Seybert on 12/6/2011. (Glueckert, Lisa)

FILED

'IN c:u'm<'e Ol'f'rel
U.8, ·~ OOIJAT, EDN.V,

* OEC 0 6 2011 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------X

LOOO ISlAND OFFICE

LAWRENCE R. ROSANO,
Plaintiff,

MEMORANDUM & ORDER
11-CV-0148(JS) (GRB)

-againstADELPHI UNIVERSITY; DEAN GRAFFA;
NICKOLAS MANOBIANCO; DONALD BARTO,
Adelphi University Director of Public
Safety; JOHN BLEWITT; McGRATH; HENRY
WILSON; GARLAND MERCER, JR.; RICHARD
MARSTON; GLEN URSHEL; ANDREW DAVIS;
EDWIN MILLER; THOMAS J. COX, Security
Guard; SARLOSY, Adelphi Director of
Public Safety; THE INCORPORATED VILLAGE
OF GARDEN CITY; THE GARDEN CITY POLICE
DEPARTMENT; TED SIGWART, P.O. on
Aug. 12, 2003, Badge No. 108; WAYNE
VOGEL, Badge No. 117; JACKSON, Badge No.
150; G. BECKET, Badge No. 104; SCHROEDER,
Badge No. 154; SULLIVAN, Badge No. 33;
CAPTAIN GINHARD, Badge No. unknown;
DiPAULO, Badge No. 37; VINCENT THORN,
Badge No. 106; VINCENT PANTOLILLO, Badge
No. 139; JUDGE FITZPATRIC, Badge No. 32;
MARGARET HURST; JIM SMITH; JACOB TURNER,
Nassau County Assistant District
Attorney; MOGIL, Nassau County District
Court Judge; IRA WARSHAWSKY; SANDRA
FEUERSTEIN; VITO PALMIERI, Court
Appointed Defense Attorney; CAROLE
BAGLEY AMON, u.s. District court for the
Eastern District, the Honorable Judge;
JOSEPH VARVARO, Adelphi University's
Attorney; MS. SCHUESTER, Attorney for
Garden City; PERRY AUERBACH, Court
Reporter; and the UNITED STATES,
Defendants.

---------------------------------------X
APPEARANCES
For Plaintiff:

Lawrence R. Rosano, pro se
1662 Lydia Avenue
Elmont, NY 11003

No appearances.

For Defendants:

SEYBERT, District Judge:
Plaintiff commenced this action pro se on January 10,
2011,

pursuant to 42 U.S.C.

of the First,
well

as

the

either file
for

November

his

of

time
For

to

do

Plaintiff
to

the

1988,

asserting violations

prohibition

2011,

service

failure

2011,

extension of
Entry 8.)

Constitution's

proof

8,

1983,

Fifth, Sixth and Fourteenth Amendments as

On October 12,

Attainder.

cause

Fourth,

§§

Bills

of

the Court ordered Plaintiff to

for each Defendant
so

by

filed

November

the

properly serve
following

against

pending

the

reasons,

or show good

18,

2011.

motion

Defendants.

Plaintiff's

1

for

On
an

(Docket
request

is

DENIED.
DISCUSSION
The

Court

may extend the

upon a showing of good cause.

time

to

serve

a

defendant

Rule 4(m) of the Federal Rules of

Civil Procedure provides:
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

1

Plaintiff was advised by the Clerk's Office on January 19, 2011
to serve the Summons and Complaint on the Defendants.
(Docket
Entry 3.)
2

for the failure, the court must extend the
time for service for an appropriate period.
Plaintiff
extension

of

time

asserts
to

serve

that
the

he

should

Defendants

be

granted
( 1)

because:

an
the

applicable statute of limitations for his state law claims has
expired (Pl. Mot.
accident

in

,

19);

December

(2)

2010,

he was injured in an unrelated car
prior

to

commencing

this

action,

which is still causing him pain and requires ongoing treatment
(Pl.

Mot.

,,

28-33);

(3)

he

has

been
Mot.

out

multiple religious vacations

(Pl.

July 2011 and October 2011,

he assisted a

of

, , 33,

the
39);

friend

country
(4)

on

between

in preparing

legal papers in an unrelated case; and (5) unless he can get the
Supreme

Court

to

definition of a
the

Federal

and he will

review

and

uphold

burden of the

free

First Amendment"

his

"need to change

[his]

now developing"

his

"unique

exercise of

"complaint

is

and

powerful

religion under
too

premature"

theory of recovery,

which is

and amend his Complaint prior to serving it on

the Defendants (Pl. Mot. , , 1-2, 7, 10).
The Court finds that Plaintiff's rationale for needing
more time is insufficient to establish good cause.

First,

the

fact that the statute of limitations may have expired on some of
Plaintiff's state law claims does not deprive the Court of the
ability to dismiss the action.
Cas.

Co.,

902 F.2d 1092,

1094

See Santos v.
(2d Cir.

3

1990)

State Farm Fire &
(" [W]e reject the

contention that

the court has no power to dismiss

for failure to comply with Rule 4[]
of

limitations

450, 453
No.

has

run.");

a

complaint

after the applicable statute

Frasca v.

United

States,

921

F.2d

(2d Cir. 1990); see also Cioce v. Cnty. of Westchester,

02-CV-3604,

2003

WL

21750052,

at

*4

(S.D.N.Y.

July

28,

2003).

Second,

Plaintiff has not even attempted to effectuate

service

on

of

any

Postal Serv.,
Mar.

31,

No.

2003)

the

See

Defendants.

02-CV-6840,

Point-Dujour

2003 WL 1745290,

at *3

v.

(S.D.N.Y.

("[W]here a party fails to take any affirmative

step to serve its adversary,

courts should refrain from granting

that party more time to serve."); Astarita v. Urgo Butts
No.

96-CV-6991,

(dismissing
ha [d]

503,

1997 WL 317028,

complaint

ever been made

Refractories
505

U.S.

Co.

v.

(S.D.N.Y.

at *4

pursuant

to

to effect

Rule

formal

Forty Eight
1999)

(S.D.N.Y.
4(m)

"no

service") ;

Insulations,

(holding

June 10,

when

that

see

Inc.,

1997)
effort

also

187

plaintiff's

Co.,

&

E.

F.R.D.

failure

to

serve the defendant within 120 days was not excusable for good
cause because plaintiff
to

timely

generally

serve
found

the
only

"failed to make any reasonable efforts
amended
in

complaint").

exceptional

"Good

circumstances

cause
where

is
the

plaintiff's failure to serve process in a timely manner was the
result
Co.,

of

circumstances beyond

187

F.R.D.

omitted) .

Thus,

at

505

its

(internal

control."

E.

Refractories

quotation marks

and citation

Plaintiff's multiple vacations and decision to
4

assist

a

friend

with

an

unrelated

lawsuit

do

not

warrant

Finally, the fact that Plaintiff's

extending the time to serve.

federal claims are not cognizable under the current state of the
law

does

not

establish

permitted to file
the

hopes

that

good

Plaintiff

cause.

not

be

this action as an indefinite placeholder in
the

Supreme

Court

~·

will

someday

unfavorable decision.

See,

Co.,

8 Fed. Appx.

840,

841 (9th Cir. 2001).

this

would

the

Defendants

denying

will

cause

Plaintiff's

an

Whipple v. Pharmacia & Upjohn

alone

See

request.

overturn

The prejudice that

justifies

Zapata v.

the

N.Y.C.,

Court's
502

F.3d

192, 195 (2d Cir. 2007).
Although it is within the Court's discretion to grant
an extension in the absence of good cause,
declines to do so here.

see id. ,

the Court

Plaintiff has already been given more

than ten months to effectuate service and multiple warnings that
failure

serve

to

Defendants

will

result

in

dismissal.

Plaintiff's pro se status alone does not justify an additional
extension.
417

See Jonas v.

(S.D.N.Y.

2006)

Citibank,

N.A.,

414 F.

Supp.

2d 411,

(pro se status does not excuse failure

comply with procedural rules);

Cioce,

2003 WL 21750052,

at

to
*4

(pro se status alone does not establish good cause under Rule
4 (m) ) .

Therefore,

the

Court

DENIES

additional time to serve the Defendants.

5

Plaintiff's

request

for

CONCLUSION
For the foregoing reasons,

Plaintiff's request for an

extension of time to serve the Summons and Complaint is DENIED,
and,

accordingly,

PREJUDICE.

The

matter closed,

Plaintiff's
Clerk of

Complaint

the

Court

is

is

DISMISSED

directed

to terminate all pending motions,

WITHOUT

to mark this
and to mail a

copy of this Memorandum and Order to the prose Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
DATED:

December
6 , 2011
Central Islip, NY

6