Brooks v. Educational Bus Transportation et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that plaintiffs applications for the entry of a default judgment against the Union are denied; the Unions application to dismiss plaintiffs claims against it pursuant to Rule 4(m) of the Federal R ules of Civil Procedure is granted; plaintiffs claims against the Union are dismissed in their entirety pursuant to Rule 4(m) of the Federal Rules of Civil Procedure for plaintiffs failure to effect service upon it; plaintiffs objections to the Repor t are overruled; the Report is accepted in its entirety; and, for the reasons set forth therein, EBTs motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted and plaintiffs claims against EBT are dismissed i n their entirety with prejudice. The Clerk of the Court shall enter judgment in accordance with this Order; close this case; and, pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, serve notice of entry of this Order upon plaintiff as provided in Rule 5(b) of the Federal Rules of Civil Procedure and record such service on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 11/12/2015. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
11/12/2015 2:11 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
-againstEDUCATIONAL BUS TRANSPORTATION
and UNITED SERVICE WORKERS UNION,
FEUERSTEIN, District Judge:
Pending before the Court are: (1) objections by plaintiff Dolly Brooks (“plaintiff”) to a
Report and Recommendation (“the Report”) of the Honorable Arlene R. Lindsay, United States
Magistrate Judge, dated August 3, 2015, recommending that the motion of defendant Educational
Bus Transportation, Inc. (“EBT”) seeking summary judgment dismissing plaintiff’s claims
against it pursuant to Rule 56 of the Federal Rules of Civil Procedure be granted in its entirety;
(2) plaintiff’s applications for the entry of a default judgment against defendant United Service
Workers Union (“the Union”); and (3) the Union’s application to dismiss plaintiff’s claims
against it pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. For the reasons stated
herein, the Report is accepted in its entirety; plaintiff’s applications for the entry of a default
judgment against the Union are denied; and the complaint is dismissed in its entirety.
Standard of Review
Any party may serve and file written objections to a report and recommendation of a
magistrate judge within fourteen (14) days after being served with a copy thereof. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and recommendation to which a
timely objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). The court, however, is not required to review the factual findings or legal conclusions
of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474
U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party
waives [judicial] review of a decision in a magistrate judge’s report and recommendation if the
party fails to file timely objections designating the particular issue.”) Specifically, where, as
here, the parties “received clear notice of the consequences of the failure to object” to a report
and recommendation, (see Report at 27-28), their “failure to object timely to [that] report waives
any further judicial review of the report.” Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)
(quotations and citation omitted); see also Caidor v. Onondago County, 517 F.3d 601, 604 (2d
Cir. 2008); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993).
“Although this rule applies equally to counseled and pro se litigants, it is ‘a
nonjurisdictional waiver provision whose violation [the Court] may excuse in the interests of
justice.’” King v. City of N.Y., Dep’t of Corrections, 419 F. App’x 25, 27 (2d Cir. Apr. 4, 2011)
(quoting Roldan, 984 F.2d at 89); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000).
“Such discretion is exercised based on, among other factors, whether the defaulted argument has
substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling
against the defaulting party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d
162, 174 (2d Cir. 2000); accord King, 419 F. App’x at 27.
Moreover, general objections, or “objections that are merely perfunctory responses argued
in an attempt to engage the district court in a rehashing of the same arguments set forth in the
original papers will not suffice to invoke de novo review * * * [because] [s]uch objections would
reduce the magistrate’s work to something akin to a meaningless dress rehearsal.” Owusu v.
New York State Ins., 655 F. Supp. 2d 308, 313 (S.D.N.Y. 2009) (alterations, quotations and
citations omitted); accord Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013).
To accept the report and recommendation of a magistrate judge to which such general or
perfunctory objections are made, the district judge need only be satisfied that there is no clear
error apparent on the face of the record. See Libbey v. Village of Atlantic Beach, 982 F. Supp.
2d 185, 199 (E.D.N.Y. 2013) (“[I]f a party makes only conclusory or general objections, or
simply reiterates his original arguments, the Court reviews the Report and Recommendation only
for clear error.” (quotations and citation omitted)); 7-Eleven, Inc. v. Khan, 977 F. Supp. 2d 214,
219 (E.D.N.Y. 2013) (accord).
Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b); see Sentry Ins. A Mut. Co. v. Brand Mgmt., Inc., 295 F.R.D. 1, 2
(E.D.N.Y. 2013); North Shore-Long Island Jewish Health Care Sys., Inc. v. MultiPlan, Inc., 953
F. Supp. 2d 419, 424 (E.D.N.Y. 2013).
Plaintiff contends, inter alia, (1) that Magistrate Judge Lindsay erred (a) in finding “that
[she] did not respond to [EBT’s] summary [judgment] motion[,]” (Objections [“Obj.”] at 1), (b)
in “attach[ing]” an unrelated case commenced by plaintiff that was assigned docket number 14cv-0662 (“the unrelated case”) “to plaintiff’s complaint against [EBT] and the [Union][,]” (id. at
3), and (c) in failing to address her “breech [sic] of contact [sic], misrepresentation, [and]
retaliation [claims],” (id. at 5); and (2) that she did not receive (a) the declaration of John K.
Diviney, Esq. (“the Diviney Declaration”), and the twenty-nine (29) exhibits attached thereto,
submitted in support of EBT’s motion for summary judgment, or (b) answers to her request for
interrogatories “which asked question [sic] in agreement or disagreement to statues [sic]
pertaining to federal[,] state and local laws govern [sic] by the U.S. Department of
Transportation[,]” (Obj. at 2).
Contrary to plaintiff’s first contention, Magistrate Judge Lindsay did not find that plaintiff
failed to respond to EBT’s motion. Indeed, the Report expressly refers to the two (2) documents
plaintiff submitted in opposition to the motion, i.e., “Plaintiff’s Response and Oral Argument to
Defendant’s Summary Judgment,” (DE 42), and plaintiff’s “Motion Against SummaryJudgement
[sic],” (DE 43).2 (See Report at 2). Rather, Magistrate Judge Lindsay correctly found that
Although the language of plaintiff’s objections is quoted verbatim where indicated, the
text has been edited to convert it from all capital letters.
To the extent plaintiff contends that the Court’s Pro Se Office and/or Clerk’s Office
improperly filed, or failed to file, certain documents submitted by her in response to EBT’s
motion, (see Obj. at 1), it is noted: (1) that pursuant to Rule 4 of my individual rules pertaining to
motion practice, motion papers, including opposition papers, are only to be filed by the moving
party when the motion is fully briefed; (2) that EBT complied with my individual rules and filed
all motion papers, including the opposition papers that plaintiff had served upon it, (see DE 42
plaintiff failed to submit the opposing statement required by Local Civil Rule 56.1(b) of the
Local Rules of the United States District Courts for the Southern and Eastern Districts of New
York. (See Report at 1-2). In any event, Magistrate Judge Lindsay properly exercised her
discretion to overlook plaintiff’s failure to comply with Local Civil Rule 56.1(b) and to “conduct
an assiduous review of the record” herself. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73
(2d Cir. 2001), abrogated on other grounds by Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S. Ct.
2343, 174 L. Ed. 2d 119 (2009); accord Spiegel v. Schulmann, 604 F.3d 72, 83 (2d Cir. 2010).
Since plaintiff’s unrelated case is not mentioned anywhere in the Report, plaintiff’s
objections relating thereto are without merit.
The only claims for breach of contract, retaliation or misrepresentation in the complaint
are: (1) that “[a] union representative Sean McCullinan discriminated and retaliated against
[plaintiff] through breach of contract and pursuant [to] . . . the [N]ational Relations [L]abot Act
when confidential information was brought to a grievance hearing by EBT’s human resource
director Patty Riviello[,]” (Compl., ¶ 8; see also Compl. at 34); and (2) that Mr. McCullinan “did
not represent [her] properly” during the grievance hearing. Since plaintiff’s only claims of
breach of contract, retaliation and misrepresentation are against the Union and/or its
representative, Magistrate Judge Lindsay did not err in failing to address those claims in her
Report regarding only EBT’s motion for summary judgment dismissing plaintiff’s claims against
Plaintiff’s contention that she did not receive the Diviney Declaration is belied not only
and 43), once the motion was fully briefed; and (3) that plaintiff’s attempts to separately file any
papers in opposition to the motion were properly rejected for failure to comply with my
individual rules for motion practice.
by the Affidavit of Service of Sandra Echezuria indicating that the Diviney Declaration, together
with, inter alia, all of the other documents supporting EBT’s motion for summary judgment, was
served upon plaintiff at her address of record on March 4, 2015, (Docket Entry [“DE”] 34), but
also by plaintiff’s own contentions in her “Motion against Summary Judgment.” (DE 43). For
example, plaintiff cited specific pages and/or sections of the collective bargaining agreement
(“CBA”) annexed as Exhibit 7 to the Diviney Declaration, (see id. at 4, 15), and claimed, inter
alia, that the information therein should be suppressed because she was not provided with a copy
of the CBA during the “discovery precess.” (Id. at 4). Plaintiff also cited to various sections of
the transcript of her deposition testimony annexed as Exhibit 14 to the Diviney Declaration. (Id.
at 14). In addition, plaintiff referred to EBT’s 56.1 Statement, (see id. at 5), which specifically
cited the Diviney Declaration and exhibits attached thereto, yet the first time she ever claimed
that she did not receive those documents was in her objections to the Report. “[E]ven in a de
novo review of a party’s specific objections, the Court ordinarily will not consider arguments, . . .
which could have been, but were not, presented to the magistrate judge in the first instance.”
Libbey, 982 F. Supp. 2d at 199 (quotations, brackets and citation omitted); see also Charlot v.
Ecolab, Inc., No. 12-cv-4543, 2015 WL 1439916, at *6 (E.D.N.Y. 2015) (“[I]t is well-established
in this district and circuit that a district court generally will not consider new arguments raised
for the first time in objections to a magistrate judge’s report and recommendation that could have
been raised before the magistrate but were not.”)3
Moreover, since plaintiff never sought to compel EBT to respond to her request for
Similarly, plaintiff’s claim of “inadequate training for line drivers,” (Obj. at 4), raised
for the first time in her objections to the Report, will not be considered.
interrogatories before Magistrate Judge Lindsay ordered that discovery was closed in this action
on March 18, 2015, or, indeed, at any time prior to her objections to the Report, she forfeited her
right to seek such discovery or to object to the close of discovery now. See, e.g. Nicholls v.
Brookdale Univ. Hosp. & Med. Ctr., 205 F. App’x 858, 860 (2d Cir. Oct. 24, 2006) (summary
order); Loeffler v. Staten Island Univ. Hosp., No. 95-cv-4549, 2010 WL 1010737, at * 2
(E.D.N.Y. Mar. 16, 2010).
Plaintiff’s remaining objections are either too general to invoke de novo review of the
Report, or merely reiterate the same arguments set forth in plaintiff’s original papers filed in
response to EBT’s motion for summary judgment. Since plaintiff has not contested any
particular factual finding or legal conclusion in the Report, I review the Report only for clear
error. See, e.g. Libbey, 982 F. Supp. 2d at 199. There being no clear error on the face of the
Report, the Report is accepted in its entirety and, for the reasons set forth therein, EBT’s motion
for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted
and plaintiff’s claims against EBT are dismissed in their entirety with prejudice.
Plaintiff’s Request for a Default Judgment against the Union
On May 23, 2014, plaintiff filed the complaint in this action, accompanied by an
application seeking leave to proceed in forma pauperis. The complaint consists of a five (5)page form complaint used in this Court by pro se plaintiffs who file employment discrimination
cases, to which is attached twenty-seven (27) pages of documents filed or received in the
administrative proceeding before the Equal Employment Opportunity Commission (“EEOC”); a
two (2)-page typed document also captioned as a “Complaint pursuant Title VII of Civil Rights
Act of 1964 ADA Act of 1990 as Amended Retaliation and Violation of Federal, State and Local
law;” and a two (2)-page civil cover sheet.4 (DE 1). On page two (2) of the form complaint is a
question requesting the address which “Defendant(s) resides at, or its business is located at[,]” to
which plaintiff responded: “63 Lamar St, West Babylon[,] Suffolk, N.Y.S., 11798,” (“the Lamar
Street address”), (Compl., ¶ 2), which is the business address of EBT. Plaintiff did not indicate
anywhere in her response to that question that the Union had a different business address,
although she clearly knew its correct business address, i.e., 138-50 Queens Boulevard,
Briarwood, New York 11435, since she indicated it in the documents attached to the form
complaint. (Id. at 9, 30 and 33). The summonses issued by the Clerk of the Court on June 16,
2014 included only the address designated by plaintiff as the business address of “Defendant(s)”
in the form complaint. (DE 7).
By order dated June 2, 2014, plaintiff’s application for leave to proceed in forma pauperis
was granted and the Clerk of the Court was directed, inter alia, to forward copies of the
summonses and complaint to the United States Marshal Service for the Eastern District of New
York (“USMS”) for service upon both defendants. (DE 5).
On July 16, 2014, John K. Diviney, Esq., and Jacqueline K. Siegel, Esq., filed notices of
appearance on behalf of EBT only, (DE 8 and 9), and Mr. Diviney also filed an
“Acknowledgment of Receipt of Summons and Complaint,” dated July 15, 2014, on behalf of
EBT only. (DE 11).
On July 22, 2014, plaintiff filed the USMS’s “Process Receipt and Return,” together with
For the sake of simplicity, the form complaint and attachments thereto is considered as
a single, consecutively-paginated, thirty-six (36)-page document that will be collectively cited as
the “Acknowledgment of Receipt of Summons and Complaint” signed by Mr. Diviney on July
15, 2014, both indicating, inter alia, that EBT had been served with process in this action. (DE
12). There is no mention of the Union anywhere on those documents, and nothing else in the
record indicates that the Union was ever served with process in this action.
On August 5, 2014, Mr. Diviney served and filed an answer on behalf of EBT only. (DE
13 and 14).
On November 7, 2014, plaintiff filed a response to EBT’s motion to compel her to
respond to its discovery demands, in which she consistently refers to “defendant” in the singular,
(DE 17), thus indicating her awareness that only one (1) defendant had appeared in the action and
was participating in discovery as of that date. Magistrate Judge Lindsay’s order granting EBT’s
motion to compel, dated November 21, 2014, (DE 18), and served upon plaintiff on November
24, 2014, (DE 19), also indicated that the motion to compel was filed on behalf of EBT only.
On January 26, 2015, counsel for EBT filed a letter clearly indicating, inter alia, that he
did not represent the Union or its representative, Mr. McCullinan, and that the Union had not
been served with process, and had not appeared, in this action as of that date. (DE 20).
On February 13, 2015, more than two (2) weeks later, plaintiff filed (1) a letter motion
directed to Magistrate Judge Lindsay requesting that a “default judgment hearing” be scheduled
for the Union’s failure to file an answer in this case, (DE 21); and (2) a motion to compel the
deposition of Mr. McCullinan that she served only upon EBT’s counsel, (DE 22). Plaintiff did
not seek an extension of time to serve the Union, or otherwise address EBT’s claim that the
Union had never been served or appeared in this action.
On February 20, 2015, counsel for EBT filed another letter indicating, inter alia, that he
never represented the Union, nor advised plaintiff that he or his firm represented the Union. (DE
23). On February 24, 2015, plaintiff filed a response to Mr. Diviney’s letter (1) indicating, inter
alia, that she “fully understood that [he] does not represent the Union or their agent Sean
McCullinan;” (2) claiming that the Union had been served by the USMS and that the “process
receipt” she filed with the Court “does indicate that two parties were served;” and (3) requesting
that a default judgment be entered against the Union and Mr. McCullinan. (DE 29). However,
the “process receipt” which she enclosed with that letter, which is the same as the one she filed
on July 22, 2014, indicated only that EBT was served. (Id.) The Union is not mentioned
anywhere on that document.
By letter dated February 23, 2015, the Union opposed plaintiff’s motion for a default
judgment and requested that her claims against it be dismissed pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure for failure to effect service upon it within the one hundred
twenty (120)-day period prescribed therein. (DE 24). Plaintiff never filed a response to that
motion or otherwise addressed the Union’s claim that it was never served with process in this
By order dated February 25, 2015, Magistrate Judge Lindsay, inter alia, denied plaintiff’s
motion to compel the deposition of Mr. McCullinan; advised that discovery in this case was to be
completed by February 18, 2015 and that any request for an extension of that deadline had to be
made to me; and indicated that plaintiff’s application for the entry of a default judgment against
the Union and the Union’s motion to dismiss the complaint “are properly before Judge
Feuerstein.” (DE 27). No party ever moved to extend the discovery deadline; nor did they ever
object to Magistrate Judge Lindsay’s final conference order, dated March 18, 2015, finding that
all discovery in this action was complete. (DE 31).
On April 7, 2015, more than six (6) weeks after the expiration of the discovery deadline
and approximately three (3) weeks after Magistrate Judge Lindsay certified that all discovery in
this action was complete, plaintiff filed an application to the Clerk of the Court to enter the
Union’s default in this action pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.
(DE 52). In her affirmation in support of the request for a certificate of default, plaintiff
indicated, inter alia, that the USMS “serviced each defendant on June 16, 2014.” (Id.) However,
the “Process Receipt and Return” that plaintiff enclosed with her application, which is the same
as the one she filed on July 22, 2014, indicates only that EBT was served at the address indicated
in plaintiff’s complaint. (Id.) Indeed, the Union is not mentioned anywhere in that document.
On that same date, the Clerk of the Court denied plaintiff’s application on the basis that defense
counsel had filed a notice of appearance on behalf of the Union on February 23, 2015.
Motion for a Default Judgment
“Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for
obtaining a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011);
see also City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011).
First, “Rule 55(a) empowers the clerk of court to enter a default[,]” Priestley, 647 F.3d at 504-05,
“[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise[.]” Fed. R. Civ. P. 55(a);
see also New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). Pursuant to Local Civil Rule 55.1
of the Local Rules of the United States District Courts for the Southern and Eastern Districts of
New York, “[a] party applying for a certificate of default by the Clerk pursuant to Fed. R. Civ. P.
55(a) shall submit an affidavit showing (1) that the party against whom a notation of default is
sought is not an infant, in the military or an incompetent person; (2) that the party has failed to
plead or otherwise defend the action; and (3) that the pleading to which no response has been
made was properly served.” (Emphasis added).
After the clerk of the court has entered a party’s default, the plaintiff must “seek a
judgment by default under Rule 55(b).” Priestley, 647 F.3d at 505; see also Green, 420 F.3d at
104. Unless the plaintiff’s claim is for a sum certain and the defaulting defendant is neither a
minor nor an incompetent person, see Fed. R. Civ. P. 55(b)(1); Local Civil Rule 55.2(a), a party
seeking a judgment by default must apply to the court for the entry of a default judgment under
Rule 55(b)(2) of the Federal Rules of Civil Procedure. See Priestley, 647 F.3d at 505; Green,
420 F.3d at 104. Pursuant to Local Civil Rule 55.2(b), a plaintiff applying to the court for the
entry of a default judgment under Rule 55(b)(2) “shall append to the application (1) the Clerk’s
certificate of default, (2) a copy of the claim to which no response has been made, and (3) a
proposed form of default judgment.” Local Civil Rule 55.2(c) provides, in relevant part, that all
papers submitted to the Court on a motion for a default judgment “shall simultaneously be
mailed to the party against whom a default judgment is sought at . . . the last known business
address of such party” and that “[p]roof of such mailing shall be filed with the Court.”
The Union’s challenge to the sufficiency of process pursuant to Rule 4(m) “effectively
shifted the burden of proof to [p]laintiff to show that service was adequate[,]” Harrison v. New
York, 95 F. Supp. 3d 293, 318 (E.D.N.Y. 2015), which she failed to do. Since, inter alia,
plaintiff has not shown “that the pleading to which no response has been made was properly
served” upon the Union as required by Local Civil Rule 55.1(3), and she cannot show that the
Union has failed to defend this action in light of its pending motion to dismiss, her request for the
entry of a default judgment against the Union is denied.
Rule 4(m) Motion
Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part:
“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 for the failure, the court must
extend the time for service for an appropriate period. * * *”
Since the one hundred twenty (120)-day period provided by Rule 4(m) is tolled while an
application to proceed in forma pauperis is pending, see Gonzalez v. L’Oreal USA, Inc., 489 F.
Supp. 2d 181, 184 (N.D.N.Y. 2007), service was required to be made on the Union by September
“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 United Merch.
Wholesale, Inc. v. IFFCO, Inc., 51 F. Supp. 3d 249, 260-61 (E.D.N.Y. 2014); Ping Chen ex rel.
U.S. v. EMSL Analytical, Inc., 966 F. Supp. 2d 282, 306 (S.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 v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 597 (E.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).
“If a plaintiff proceeding [in forma pauperis] chooses to rely on the Marshals to serve the
relevant parties, and it becomes apparent that the Marshals will not accomplish this by the Rule
4(m) or court-ordered deadline, she must advise the district court that she is relying on the
Marshals to effect service and request a further extension of time for them to do so.” Meilleur v.
Strong, 682 F.3d 56, 63 (2d Cir. 2012); see also Gonzalez, 489 F. Supp. 2d at 184 (“Although
plaintiffs proceeding in forma pauperis are entitled to rely upon the United States Marshal to
effect service, that reliance is not absolute; plaintiffs always retain the obligation to provide the
process servers with the necessary information and to generally make diligent efforts” to ensure
that the service was effected.) “If a pro se plaintiff has made sufficiently diligent efforts to have
the United States Marshal’s Service serve a defendant within the relevant time period, then there
is good cause for the plaintiff’s failure to timely serve process.” Gonzalez, 489 F. Supp. 2d at
184. However, although a plaintiff’s in forma pauperis status may relieve her of the burden to
personally serve the defendants, she cannot “stand idle” upon learning that the efforts by the
USMS to serve a particular defendant have been unsuccessful. McGee v. Haigh, No. 9:13-cv394, 2015 WL 1456612, at *2 (N.D.N.Y. Mar. 30, 2015); see also Shepherd v. Fischer, No. 9:10cv-1524, 2015 WL 1246049, at * 22 (N.D.N.Y. Feb. 23, 2015), report and recommendation
adopted by 2015 WL 1275298 (N.D.N.Y. Mar. 18, 2015) (holding that a pro se defendant may
not “stand idle upon being notified that efforts by the U.S. Marshals Service to serve a particular
defendant have been unsuccessful. . . . A plaintiff who does so acts at his peril, and risks
dismissal of his claims against an unserved defendant.” (citation omitted)).
Plaintiff, inter alia, (1) did not provide the correct business address for the Union in the
area of the Court’s form complaint requesting such information; (2) never advised the Court that
the address provided for the Union in the summons issued by the Clerk of the Court on June 16,
2014 was erroneous or provided the USMS with the correct business address for the Union; (3)
filed documents indicating only that EBT had been served with process in this action, but never
filed anything indicating that the Union had ever been served with process in this action; (4)
prosecuted this case for approximately seven (7) months without any involvement by the Union;
(5) did not raise the Union’s failure to appear or participate in this action until February 13,
2015, only five (5) days before the deadline set by Magistrate Judge Lindsay for the completion
of discovery in her Scheduling Order dated September 3, 2014, (DE 15); and (6) never responded
to the Union’s contention that it had not been served with process in this action in its application
to dismiss her claims pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Since
plaintiff “ha[s] not shown sufficiently diligent efforts to ensure that the service was effected”
upon the Union, see, e.g. Gonzalez, 489 F. Supp. 2d at 184 (finding that since plaintiffs originally
provided the USMS with an incorrect address to serve defendant and did not provide the USMS
with an alternate address for service for approximately three (3) months after being notified that
service could not be effected at the address provided, they did not satisfy their obligation to make
diligent efforts to ensure that service was effected); Shepherd, 2015 WL 1246049, at * 22
(finding, inter alia, that since the fact that certain defendants had never been served with process,
or otherwise appeared in the action, within the appropriate time period was well documented in
the court’s docket sheet, there was neither good cause for plaintiff’s failure to effectuate timely
service, nor a sufficient basis for extending the governing period of service), she has not
demonstrated good cause for her failure to effect service upon the Union within the one hundred
twenty (120)-day period prescribed by Rule 4(m) of the Federal Rules of Civil Procedure.
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, 682 F.3d at 61. “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
Harrison, 95 F. Supp. 3d at 319.
“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. Since plaintiff has never moved for
an extension of time to serve the Union to date, this factor weighs against her. See, e.g. Smith v.
Bray, No. 13-cv-07172, 2014 WL 5823073, at * 5 (S.D.N.Y. Nov. 10, 2014) (finding that the
plaintiffs’ failure to move for an extension of time weighed against them).
If plaintiff’s claims against the Union are dismissed, the applicable statute of limitations
would likely bar her from re-filing those claims.5 See 42 U.S.C. § 2000e-5(f)(1) (specifying that
The right-to-sue letter that is attached to the complaint, dated March 14, 2014, pertains
only to plaintiff’s EEOC charge against EBT, dated June 12, 2013, which was assigned EEOC
Charge No. 520-2013-00801. (See Compl. at 7, 25-26). Plaintiff does not attach a copy of any
right-to-sue letter pertaining to her EEOC charge against the Union, dated July 29, 2013, which
was assigned EEOC Charge No. 520-2013-02131. (See id. at 29-30). As plaintiff’s charge
a Title VII action must be commenced within ninety (90) days of the claimant’s notification of
her right to sue); id., § 12117(a) (applying the Title VII limitations period to claims brought
under the ADA). Although courts often consider “the fact that the statute of limitations has run
on a plaintiff’s claim as a factor favoring the plaintiff in a Rule 4(m) analysis[,]” Harrison, 95 F.
Supp. 3d at 319, “[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)); Smith, 2014
WL 5823073, at * 6 (“Even though dismissal may prejudice some of Plaintiffs’ claims based on
applicable statutes of limitations, . . . this factor is not dispositive, [citations omitted], and cuts
The other three (3) factors for granting a discretionary extension of time to serve a
defendant weigh in favor of the Union. “[E]xtending 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 v.
Town of Orangetown, N.Y., 916 F. Supp. 2d 404, 421 (S.D.N.Y. 2013), appeal filed, No. 153347 (2d Cir. Oct. 21, 2015); accord Smith, 2014 WL 5823073, at * 5. “While th[e] prejudice is
lessened if the defendants had actual notice of the plaintiff’s claims,” Vaher, 916 F. Supp. 2d at
against the Union was filed approximately six (6) weeks after her charge against EBT, it is
presumed for purposes of this motion only that she would have received a right-to-sue letter
pertaining to her charge against the Union approximately six (6) weeks after she received the
right-to-sue letter pertaining to her charge against EBT, i.e., on or about April 25, 2014, and,
thus, that the statute of limitations for plaintiff’s federal discrimination claims against the Union
likely expired on or about July 24, 2014.
421; accord Terry v. Village of Ossining, No. 12 Civ. 5855, 2013 WL 5952834, at * 7 (S.D.N.Y.
Nov. 5, 2013), there is no indication that the Union ever had actual notice of plaintiff’s claims
against it 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.”) Indeed, the first indication that the Union ever had notice of plaintiff’s claims against it
in this action is on February 23, 2015, approximately seven (7) months after the limitations
period presumably had expired; six (6) months after the service period prescribed by Rule 4(m)
had expired; and five (5) days after the discovery deadline set by Magistrate Judge Lindsay, (see
DE 15), had expired. “[I]n the absence of good cause, no weighing of the prejudices between the
two parties can ignore that the situation is the result of the plaintiff’s neglect[,]” Zapata, 502 F.3d
at 198, in, inter alia, failing to provide the correct address for the Union in her complaint and to
promptly move for an extension of time to serve the Union when it was apparent that the USMS
had failed to effect proper service upon it.6
Furthermore, the Union did nothing to conceal the absence of service of process upon it.
Indeed, plaintiff was clearly aware of the need to serve the Union and file proof of such service,
as she did so with respect to EBT; and she was, or should have been, aware that the summons
contained an incorrect address for the Union, that no return of service had ever been filed with
Moreover, by letter dated June 4, 2014, the Court’s Pro Se Office advised plaintiff,
inter alia, that she could call the Pro Se Office at the telephone number provided therein with any
questions or for further assistance in this case, (DE 6), and, at least twice Magistrate Judge
Lindsay referred plaintiff to the Pro Se Office for assistance in prosecuting this case, (DE 18 and
27), but plaintiff apparently chose not to heed that advice.
respect to the Union, and that the Union had never appeared or participated in this action.
Although plaintiff repeatedly maintains that the “Process Receipt and Return” filed by her on
July 22, 2014 demonstrates that the Union was served, it is clear from the face of that document
that it pertains only to EBT, as the Union is not mentioned anywhere therein. Even when the
Union clearly raised the issue that it had never been served in this action and filed an application
to dismiss plaintiff’s claims against it on that basis, plaintiff failed to request an extension of
time to serve the Union, or to even respond to the Union’s motion. Accordingly, on balance, the
factors in this case weigh in favor of dismissing plaintiff’s claims against the Union. Although
the Court recognizes the hardship that will befall plaintiff upon dismissal of her claims against
the Union in light of the probable expiration of the applicable limitations periods, the delay in
service upon the Union is “sufficiently egregious to compel dismissal,” Eastern Refractories at
507; see also 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”), particularly since plaintiff entirely ignored the Union’s application
to dismiss her claims against it for failure to effect proper service pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure.
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. Since plaintiff
proffers no explanation for her failure to seek an extension of time to effect service upon the
Union in the approximate fifteen (15)-month period since she filed the return of service with
respect to EBT, but not with respect to the Union, or even in eight (8)-month period since the
Union filed its application to dismiss her claims against it for her failure to effect service upon it
within the period prescribed by Rule 4(m) of the Federal Rules of Civil Procedure, her claims
against the Union are dismissed in their entirety pursuant to Rule 4(m) of the Federal Rules of
Civil Procedure. 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).
For the reasons set forth herein, plaintiff’s applications for the entry of a default judgment
against the Union are denied; the Union’s application to dismiss plaintiff’s claims against it
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure is granted; plaintiff’s claims
against the Union are dismissed in their entirety pursuant to Rule 4(m) of the Federal Rules of
Civil Procedure for plaintiff’s failure to effect service upon it; plaintiff’s objections to the Report
are overruled; the Report is accepted in its entirety; and, for the reasons set forth therein, EBT’s
motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is
granted and plaintiff’s claims against EBT are dismissed in their entirety with prejudice. The
Clerk of the Court shall enter judgment in accordance with this Order; close this case; and,
pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, serve notice of entry of this
Order upon plaintiff as provided in Rule 5(b) of the Federal Rules of Civil Procedure and record
such service on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d
SANDRA J. FEUERSTEIN
United States District Judge
Dated: November 12, 2015
Central Islip, New York
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