Stair et al v. Calhoun et al

Filing 70

ORDER: SO ORDERED that plaintiffs request for an extension of time to serve Gilbert is denied and plaintiffs claims against Gilbert are dismissed in their entirety pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. H. Linwood Gilbert terminated. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 5/4/2015. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THEODORE STAIR, individually, THEODORE
STAIR, an Officer, Director and Shareholder of
American Virgin Enterprises, Ltd., derivatively
on behalf of American Virgin Enterprises, Ltd.,
and THEODORE STAIR, as a Member of
Sirius Development, LLC, derivatively on
behalf of Sirius Development, LLC,

FILED 
CLERK 

5/4/2015 11:21 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiffs,
ORDER
12-CV-6121 (SJF)(SIL)

-againstRORY CALHOUN, JOHN HANRAHAN,
ROBERT E. PARELLA and H. LINWOOD
GILBERT,
Defendants.
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FEUERSTEIN, District Judge:

On or about December 13, 2012, plaintiff Theodore Stair (“plaintiff”), by counsel,
commenced this action against defendants Rory Calhoun (“Calhoun”), John Hanrahan
(“Hanrahan”), Robert E. Parella (“Parella”) and H. Linwood Gilbert (“Gilbert”) (collectively,
“defendants”) pursuant to this Court’s diversity of citizenship jurisdiction under 28 U.S.C. §
1332(a), asserting claims seeking, inter alia, damages for violations of Sections 626 and 720 of the
New York Business Corporation Law and Sections 1410 and 2101 of Title 13 of the Virgin Islands
Code; fraud; and legal malpractice. On March 7, 2014, plaintiff’s then-counsel1 filed affidavits of
service indicating that a summons and the complaint were purportedly served upon Hanrahan on
December 15, 2012, and Parella and Calhoun on December 18, 2012; but no affidavit of service

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During a conference held before me on April 24, 2014, I, inter alia, granted plaintiff’s motion
to relieve his counsel and to proceed pro se in this action.
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indicating that plaintiff served the summonses and complaint upon Gilbert was ever filed.
Accordingly, by Order and Order to Show Cause dated March 31, 2015, inter alia, plaintiff was
ordered to show cause, by serving and filing an affidavit on or before April 30, 2015, why this
action should not be dismissed against Gilbert for his failure to serve the summons and complaint
upon him within the time prescribed by Rule 4(m) of the Federal Rules of Civil Procedure. On or
about April 29, 2015, plaintiff filed an affidavit in accordance with the Order to Show Cause, in
which he requests an extension of time to serve Gilbert. For the reasons set forth below, plaintiff’s
request for an extension of time to serve Gilbert is denied and his claims against Gilbert are
dismissed in their entirety pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

I.

Discussion
In his affidavit, plaintiff contends that the failure to timely serve Gilbert with a summons

and the complaint in this action was the fault of his former counsel and “was not at all his fault.”
(Id. at 2). According to plaintiff, “any failure to effect timely service had not been the result of
inadvertence on his part, but rather the ‘evasive’ actions of his attorney, * * * [whose] neglect was
extreme[,]” (id.); he “could not have avoided the consequences of his counsel’s negligence and
flagrant failures of representations,” (id.); and he “could only persistently inquire as to the status of
the filing of the complaint and service of process on the defendants of his attorney.” (Id.) Plaintiff
further contends (1) that he is “an innocent client” who should be relieved “from the consequences
of his attorney’s negligence[,]” (id.); and (2) that he should be granted an extension of time to serve
Gilbert since the applicable statutes of limitations have expired and, thus, would bar him from refiling his claims against Gilbert.
“Good cause, or excusable neglect,’ is evidenced only in exceptional circumstances, where
the insufficiency of service results from circumstances beyond the plaintiff’s control.” Feingold v.
Hankin, 269 F. Supp. 2d 268, 276 (S.D.N.Y. 2003); accord Chen ex rel. U.S. v. EMSL Analytical,
Inc., 966 F. Supp. 2d 282, 306 (S.D.N.Y. 2013); Jordan v. Forfeiture Support Assocs., 928 F.
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Supp. 2d 588, 597 (E.D.N.Y. 2013). Generally, in determining good cause, “[d]istrict courts
consider the diligence of plaintiff’s efforts to effect proper service and any prejudice suffered by
the defendant as a consequence of the delay.” Eastern Refractories Co. v. Forty Eight Insulations,
Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999); accord Jordan, 928 F. Supp. 2d at 597; Vaher v. Town
of Orangetown, N.Y., 916 F. Supp. 2d 404, 419 (S.D.N.Y. 2013). “A party seeking a good cause
extension bears a heavy burden of proof.” Chen, 966 F. Supp. 2d at 306; accord Beauvoir v.
United States Secret Service, 234 F.R.D. 55, 57 (E.D.N.Y. 2006).
Since “[a]n attorney’s * * * neglect[] or mistake do[es] not constitute good cause[,]”
Feingold, 269 F. Supp. 2d at 276; accord Chen, 966 F. Supp. 2d at 306; Eastern Refractories, 187
F.R.D. at 505, plaintiff has not satisfied his burden in this case. Moreover, plaintiff proffers no
excuse, inter alia, for his continued failure to serve Gilbert, or to seek an extension of time to do
so, after his attorney was relieved and he was granted leave to proceed pro se in this action more
than one (1) year ago, even though it was clear from the Court’s docket that no affidavit of service
was ever filed with respect to Gilbert and Gilbert never appeared in this case.
Nonetheless, courts “have discretion to grant extensions [of the time for service] even in the
absence of good cause.” Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007); accord
Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012). “In exercising this discretion, the courts
consider 1) whether the statute of limitations would bar a re-filed action, 2) whether the defendant
had attempted to conceal the defect in service, 3) whether the defendant would be prejudiced by
excusing the plaintiff from the time constraints of the provision, and 4) whether the defendant had
actual notice of the claims asserted in the complaint.” Feingold, 269 F. Supp. 2d at 277; accord
Jordan, 928 F. Supp. 2d at 598; Eastern Refractories, 187 F.R.D. at 506.
“Generally, when courts consider granting an extension of time notwithstanding a lack of
good cause, they are considering motions made by plaintiffs prior to the expiration of the 120–day
period.” Eastern Refractories, 187 F.R.D. at 506. Here, plaintiff never moved for an extension of
time to serve Gilbert until the Court ordered him to show cause why his claims against Gilbert
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should not be dismissed pursuant to Rule 4(m), almost three (3) years after he filed the complaint
and more than one (1) year after plaintiff’s counsel was relieved and plaintiff was granted leave to
proceed pro se in this action.
Although “courts often consider the fact that the statute of limitations has run on a claim as
favoring the plaintiff[,]” Vaher, 916 F. Supp. 2d at 420; accord Beauvoir, 234 F.R.D. at 58, “[t]he
fact that plaintiff's claims may be time-barred does not require [the Court] to exercise [its]
discretion in favor of plaintiff.” Eastern Refractories, 187 F.R.D. at 506 (emphasis added); see also
Zapata, 502 F.3d at 197 (“[A] district court may grant an extension in the absence of good cause,
but it is not required to do so.” (emphasis in original)). The other three (3) factors weigh in favor
of Gilbert, insofar as “extending the service period beyond the statute of limitations period for the
action imposes a * * * prejudice on defendants, especially where, as here, both the service period
and the statute of limitations period have long since expired[,]” Vaher, 916 F. Supp. 2d at 421, and
“[w]hile th[e] prejudice is lessened if the defendants had actual notice of the plaintiff's claims,” id.,
there is no indication that Gilbert ever had actual notice of plaintiff’s claims against him in this
action prior to the expiration of the applicable limitations periods. See, e.g. Abreu v. City of New
York, 657 F. Supp. 2d 357, 362 (E.D.N.Y. 2009) (finding that the defendant “would be prejudiced
by any sua sponte order prolonging plaintiff’s opportunity to serve her on claims that accrued more
than four years ago and about which she has received no notice.”) Furthermore, Gilbert did
nothing to conceal the absence of service of process upon him and, indeed, plaintiff was clearly
aware of both the need to serve Gilbert and his attorney’s dilatoriness in serving Gilbert, and
should have been aware from even the most cursory review of the Court’s docket that no affidavit
of service had ever been filed with respect to Gilbert and Gilbert never appeared in this action.
Accordingly, on balance, the factors weigh in favor of dismissing plaintiff’s claims against Gilbert.
Although the Court recognizes the hardship that will befall plaintiff upon dismissal of his claims
against Gilbert in light of the expiration of the applicable limitations periods, the delay in service
upon Gilbert is “sufficiently egregious to compel dismissal.” Eastern Refractories at 507; see also
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Vaher, 916 F. Supp. 2d at 421 (finding that the prejudice factor weighed in favor of the defendant
where “the delay in this case was unusually lengthy and unreasonably prolonged by Plaintiff’s lack
of diligence.”)
Furthermore, “even if the balance of hardships favors the plaintiff a district court may still
decline to excuse a failure to timely serve the summons and complaint where the plaintiff fails to
advance some colorable excuse for [the] neglect.” Vaher, 916 F. Supp. 2d at 421. Although
plaintiff contends that his failure to timely serve Gilbert should be excused by his attorney’s
“negligence,” he proffers no explanation for his failure to seek an extension of time to serve
Gilbert, or to attempt to serve Gilbert himself, in the more than one (1)-year period since (a) his
former attorney filed the three (3) affidavits of service and failed to file an affidavit of service with
respect to Gilbert; and (b) he was permitted to proceed pro se in this action. See, e.g. Zapata, 502
F.3d at 199 (affirming dismissal where the plaintiff made no effort to effect service within the
service period; neglected to ask for an extension of time within a reasonable period of time; and
advanced no colarable excuse for his delay). Accordingly, plaintiff’s request for an extension of
time to serve Gilbert is denied and plaintiff’s claims against Gilbert are dismissed in their entirety
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

III.

Conclusion
For the reasons stated herein, plaintiffs’ request for an extension of time to serve Gilbert is

denied and plaintiff’s claims against Gilbert are dismissed in their entirety pursuant to Rule 4(m) of
the Federal Rules of Civil Procedure.
SO ORDERED.
____________/s/________________
SANDRA J. FEUERSTEIN
United States District Judge
Dated: May 4, 2015
Central Islip, N.Y.
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