Terry v. County of Suffolk, in the State of New York et al

Filing 73

ORDER re 51 Letter. Plaintiff's request for an extension of time to serve Defendants Mulvaney, Miller, Nudo, and DiStefano is deemed MOOT. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/20/2012. (Sofio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HENRY R. TERRY,
Plaintiff,
ORDER
- against CV 11-2247 (WFK) (AKT)
COUNTY OF SUFFOLK, IN THE STATE OF
NEW YORK, SUFFOLK COUNTY
DEPARTMENT OF CIVIL SERVICE, PARENTS
FOR MEGAN’S LAW INC., SUFFOLK COUNTY
DISTRICT ATTORNEY’S OFFICE, LAURA
AHEARNS in her official and individual capacity,
VICTOR CRUZ in his official and individual
capacity, JAMES NUDO in his official and
individual capacity, MARY PONTIERI in her
official and individual capacity, JOSPEH E.
PERRY in his official and individual capacity,
CYNTHIA DISTEFANO in her official and
individual capacity, FRANKLIN S.
LEVANDOSK in his official and individual
capacity, EDWARD A. IHNE in his official and
individual capacity, ROSE MARIE BERGER in
her official and individual capacity, DANIEL J.
SMITH in his official and individual capacity,
JAMES E. MULVANEY in his official and
individual capacity, MICHAEL K. MILLER in his
official and individual capacity, JOHN DOE 1 in
their official and individual capacity, JOHN DOE 2
in their official and individual capacity, JOHN
DOE 3 in their official and individual capacity,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
On January 18, 2012, Plaintiff pro se, Henry R. Terry requested an extension of time to
serve the Summons and Complaint on Defendants James Nudo, James Mulvaney and Mark
Miller. DE 51 at 4. Because Plaintiff did not explain the circumstances surrounding the request

and what efforts Plaintiff had made in good faith to effect service, the Court directed Plaintiff to
provide additional information, which Plaintiff provided on March 6, 2012. See DE 53, 57, 68.
In his March 6, 2012 submission, the Plaintiff explained that he was only seeking an
extension of time to serve the Defendants at issue in their individual capacities. The March 6,
2012 letter also made reference to Defendant Cynthia DiStefano who was not referenced in
Plaintiff’s initial request. The Court addresses each of the Defendants separately below.
Defendants Mulvaney and Miller
After Plaintiff filed his initial request for an extension of time to serve, counsel for
Defendants Mulvaney and Miller advised the Court that Plaintiff did “not need to serve
defendants Mulvaney and Miller with a summons and complaint,” since counsel had appeared on
their behalf in this case. DE 54. Counsel also stated that he would not assert the defenses of
insufficient process or service of process on behalf of Mulvaney and Miller. See DE 54.
Thereafter, on February 17, 2012, Mulvaney and Miller filed a motion to dismiss in which
Defendants acknowledged that they were being sued in both their official and individual
capacities. See DE 59 at 3. Mulvaney and Miller raised several defenses, but, as represented, did
not argue that the Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(4)
for insufficient process or 12(b)(5) for insufficient service of process. Therefore, the request for
an extension of time to serve Defendants Mulvaney and Miller is moot since it appears that these
Defendants have waived their right to assert a defense based on insufficient process. See Fed. R.
Civ. P. 12(h)(1); Cuello v. Lindsay, No. 09-CV-4525, 2011 WL 1134711, at *1 n.2 (E.D.N.Y.
March 25, 2011).

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Defendant Nudo
The situation with Defendant Nudo is different. The docket reflects that Plaintiff was
unable to effect service on Defendant Nudo. DE 33. Defendant Nudo, through counsel, also
filed a motion to dismiss. See DE 62. A footnote in the Statement of Facts of the Memorandum
of Law submitted in support of the motion states the following:
Docket Sheet Entry No. 33 reports that plaintiff has not served the
summons and complaint on James Nudo, now retired in Arizona.
Plaintiff filed the complaint on May 9, 2011. Fed. R. Civ. Pro. 4(m)
states, “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.”
Plaintiff, a veteran litigant, did not serve Nudo within four months,
and has no good reason for any extension. On that basis alone, the
Court should dismiss the case against Nudo.
Id. at 4. The Court notes that Plaintiff’s January 18, 2012 request for additional time to serve
was made after the expiration of the 120 days in light of the fact that his Complaint was filed on
May 9, 2011. Nudo is correct that the failure to serve a Plaintiff within 120 days after the
Complaint may, in certain circumstances, result in dismissal. See Fed. R. Civ. P. 4(m); Harper v.
City of New York, No. 09-CV-5571, 2010 WL 4788016, at *5-10 (E.D.N.Y. Nov. 17, 2010).
Given the motion to dismiss on these grounds pending before Judge Kuntz, the Court defers to
Judge Kuntz’s jurisdiction and forthcoming decision on this issue.
Defendant DiStefano
As noted, Plaintiff did not request an extension of time to serve Defendant DiStefano in
his January 18, 2012 letter. The Court was not aware that there were any issues with respect to
Cynthia DiStefano until it received Plaintiff’s March 9, 2012 letter. The docket reflects that

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DiStefano was served “in her official capacity” on September 6, 2011. DE 19. There is no
similar proof of service of a summons on DiStefano in her “individual capacity.” Nevertheless,
Defendant DiStefano answered the Complaint and did not distinguish between her individual and
official capacities, nor did she raise any defenses of insufficient service of process. See DE 40.
Moreover, Ms. DiStefano’s counsel recently confirmed “[d]efendant DiStefano appeared in this
action by the filing of an answer, without the defense of lack of personal jurisdiction. Thus, there
is no need to effectuate service of process on her.” See DE 72. Thus, this issue appears to be
moot with respect to Defendant DiStefano.
For the foregoing reasons, Plaintiff’s request for an extension of time to serve Defendants
Mulvaney, Miller, Nudo, and DiStefano is deemed MOOT.
Counsel for Defendant Nudo is directed to serve a copy of this Order on Plaintiff pro se
forthwith and to file proof of service on ECF.

SO ORDERED.
Dated: Central Islip, New York
March 20, 2012
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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