Etheridge-Brown et al v. America Media, Inc. et al

Filing 39

OPINION AND ORDER: Alicia Etheredge-Brown and Robert Brown (together, "Plaintiffs") bring this action for defamation. The sole claim remaining in the case is against individual defendant Derrick Handspike. Accordingly, the Court declines t o exercise its discretion to grant a retroactive extension of time for service under Rule 4(m). For the foregoing reasons, Plaintiffs' claim against Handspike is DISMISSED under Rule 4(m). The Clerk of the Court is directed to close this case. (As further set forth in this Order.) (Signed by Judge J. Paul Oetken on 8/14/2015) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
:
ALICIA ETHEREDGE-BROWN and ROBERT :
:
BROWN,
Plaintiffs, :
:
-v:
:
:
AMERICAN MEDIA, INC. and DERRICK
HANDSPIKE,
:
Defendants. :
:
-------------------------------------------------------------X

13-CV-1982 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Alicia Etheredge-Brown and Robert Brown (together, “Plaintiffs”) bring this action for
defamation. The sole claim remaining in the case is against individual defendant Derrick
Handspike. For the reasons that follow, the claim against Handspike is dismissed under Rule
4(m) of the Federal Rules of Civil Procedure.
I.

Background
Plaintiffs filed this diversity action on or around March 25, 2013, asserting defamation

claims against Handspike and American Media, Inc. (“AMI”), 1 the owner of a publication called
the National Enquirer. (Dkt. No. 1.) In March 2014, the Court denied a motion for summary
judgment by AMI on the grounds of the statute of limitations (Dkt. No. 17), and ultimately the
claims against AMI were voluntarily dismissed with prejudice (Dkt. No. 25).
Plaintiffs did not serve Handspike with process until May 30, 2014, more than 400 days
after the filing of the complaint. (Dkt. No. 23.) Handspike failed to respond. Plaintiffs took no

1

This entity was designated “America Media, Inc.” in the complaint.

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action concerning Handspike until they were directed to inform the Court by November 24,
2014, whether they intended to proceed against him. (Dkt. No. 26.) Plaintiffs responded in the
affirmative, but by December 22, 2014, Plaintiffs had not properly begun the process of seeking
a default judgment against Handspike. At that time, the Court ordered them to show cause why
the claim should not be dismissed for failure to prosecute. (Dkt. No. 29.)
On January 5, 2015, the Clerk of the Court entered a certificate of default as to Handspike
(Dkt. No. 30), and on January 14, 2015, Plaintiffs filed a motion for default judgment (Dkt. No.
32). On April 16, 2015, the Court denied the motion for default judgment without prejudice and
ordered Plaintiffs to show cause why the claim against Handspike should not be dismissed for
failure to comply with Rule 4(m). 2 (Dkt. No. 37.) Plaintiffs’ counsel has filed an affidavit in
which he asserts that dismissal under Rule 4(m) is unwarranted. (Dkt. No. 38.)
II.

Discussion
As pertinent here, Rule 4(m) 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 for the failure, the court must
extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). “Plaintiffs bear the burden of showing that there was good cause in failing
to timely serve a defendant.” Carroll v. Certified Moving & Storage, Co., No. 04 Civ. 4446

2

The Court initially did not perceive the problem concerning the date of service under Rule 4(m)
because the docket text accompanying the affidavit of service, the Clerk’s certificate of default,
and Plaintiffs’ motion for default judgment all erroneously stated that Handspike had been
served on May 30, 2013. In fact, service is asserted to have taken place on May 30, 2014. (See
Dkt. No. 37, at 2 n.2.)

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(ARR), 2005 WL 1711184, at *2 (E.D.N.Y. July 19, 2005). The rule “give[s] wide latitude to
courts in deciding when to grant extensions on time to serve, including permitting courts to grant
extensions even absent good cause.” Gerena v. Korb, 617 F.3d 197, 201 (2d Cir. 2010).
A.

Good Cause Extension

“A party seeking a good cause extension bears a heavy burden of proof.” Alvarado v.
Am. Freightways, Inc., No. 04 Civ. 9536 (JCF), 2005 WL 1467893, at *5 (S.D.N.Y. June 21,
2005). “In determining whether a plaintiff has shown good cause, courts weigh the plaintiff’s
reasonable efforts and diligence against the prejudice to the defendant resulting from the delay.”
DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 66 (S.D.N.Y. 2010). “Good cause is
generally found only in exceptional circumstances where the plaintiff’s failure to serve process
in a timely manner was the result of circumstances beyond its control.” Vaher v. Town of
Orangetown, 916 F. Supp. 2d 404, 419 (S.D.N.Y. 2013) (internal quotation marks omitted). “An
attorney’s inadvertence, neglect, mistake or misplaced reliance does not constitute good cause.”
E. Refractories Co. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999)
(internal quotation marks omitted). “In considering whether good cause exists, ‘the court should
look to whether the plaintiff was diligent in making reasonable efforts to effect service, including
but not limited to whether plaintiff moved . . . for an extension of time in which to serve the
defendant.’” Tuitt v. Long Island R.R. Co., No. 10 Civ. 8582 (ALC) (GWG), 2012 WL 3241658,
at *2 (S.D.N.Y. Aug. 10, 2012) (quoting AIG Managed Mkt. Neutral Fund v. Askin Capital
Mgmt. L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000)), report & rec. adopted, No. 10 Civ. 8582,
Dkt. No. 14 (S.D.N.Y Sept. 10, 2012).

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Plaintiffs have not shown good cause for their failure to serve Handspike within the
period prescribed by Rule 4(m). According to the account provided by Plaintiffs’ counsel,
Christopher Brown:
While [AMI’s motion for summary judgment 3] was pending,
[Plaintiffs] hired APS Services in Atlanta to locate Mr. Handspike
and his company, Down South Books[,] which was dissolved in
2010. . . . APS was unable to locate an address for Mr. Handspike
or his Company. APS Services originally went to 2464 Mc[A]fee
Rd[.], Decatur, GA to serve Handspike but was unable to serve
him.
(Dkt. No. 38 (“Brown Aff.”) ¶ 4.) Plaintiffs’ counsel avers that he was able to “verify contact
information for Handspike” after AMI settled Plaintiffs’ claim against it, and proceeded in May
2014 to serve Handspike through Summer Woods, a relation of Handspike, at 2464 McAfee
Road in Decatur, GA. (Id. ¶¶ 5-7.) Counsel contends “[u]pon information and belief” that
Handspike “purposely avoided service of process,” and that Woods “informed APS that she was
told to tell APS that Handspike would never be there.” (Id. ¶¶ 7-8.) The McAfee Road address
was, as a matter of public record, the address of Handspike’s defunct company, Down South
Books, LLC. (Id. ¶ 4 & Ex. A.)
The evidence presented by Plaintiffs demonstrates that they were not diligent in making
reasonable efforts to serve Handspike. Plaintiffs had located Handspike’s McAfee Road address
as early as sometime in 2013, although they do not specify precisely when. The address was also
publicly available as the address of Down South Books. For reasons that are not made clear in
the papers, Plaintiffs’ process server “was unable to serve” Handspike after initially finding this

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Brown’s affidavit states that AMI “filed a Motion to Dismiss.” (Brown Aff. ¶ 4.) The Court
assumes this is meant to refer to the motion for summary judgment that AMI filed on June 7,
2013. (See Dkt. No. 5.)

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address. 4 (Brown Aff. ¶ 4.) Plaintiffs do not assert that they made any further efforts to serve
Handspike, or to locate another address where he could be served, until May 2014—over a year
after the complaint was filed in March 2013, and long after the expiry of the 120-day period
provided in Rule 4(m). “The diligence of the plaintiff’s efforts to effect proper service is an
important consideration in a determination of good cause.” Alvarado, 2005 WL 1467893, at *5.
And during all this time, Plaintiffs never made an application to the Court to extend the period
for service under Rule 4(m). 5 See Spinale v. United States, No. 03 Civ. 1704 (KMW) (JCF),
2005 WL 659150, at *4 (S.D.N.Y. Mar. 16, 2005) (holding the “failure of service is due not to
extraordinary circumstances, but to neglect,” after citing, inter alia, the “noteworthy” fact that
“the plaintiffs made no effort to request an extension until . . . more than ten months after the
deadline for service had passed”), report & rec. adopted, No. 03 Civ. 1704, Dkt. No. 67
(S.D.N.Y. Sept. 30, 2005), aff’d sub nom. Spinale v. Ball, 352 F. App’x 599 (2d Cir. 2009)
(summary order).
Furthermore, Plaintiffs state that they attempted to find and serve Handspike only after
they had already served AMI and its motion for summary judgment was already pending.

4

To the extent that Plaintiffs attempt to establish good cause by implying that their process
server may have been at fault, this is unavailing. “[M]isplaced reliance on a process server does
not suffice to establish good cause for a failure to effect service.” Ping Chen ex rel. United
States v. EMSL Analytical, Inc., 966 F. Supp. 2d 282, 306 (S.D.N.Y. 2013) (quoting Sadler v.
148 Acad. Realty, LLC, No. 09 Civ. 3338 (KMK), 2010 WL 3952862, at *1 (S.D.N.Y. Oct. 8,
2010)).
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As noted above, even after the complaint was served on Handspike, Plaintiffs failed to take
action to obtain a default judgment until after the Court ordered them to show cause why the
action should not be dismissed for failure to prosecute. (See Dkt. No. 29.) Then, Plaintiffs did
not request to extend the time to serve Handspike until the filing of Brown’s May 2015 affidavit,
following the order to show cause why the action should not be dismissed for failure to comply
with Rule 4(m). (See Dkt. Nos. 37, 38.)

5

(Brown Aff. ¶ 4.) The motion for summary judgment was filed on June 7, 2013, more than 70
days after the complaint was filed, and was decided on March 31, 2014, more than a year after
the complaint was filed. (See Dkt. Nos. 5, 17.) Plaintiffs assert only that they hired an agent to
locate Handspike during the pendency of the motion. Thus, they have not established that they
even attempted to locate Handspike during the 120-day period set out in Rule 4(m). See Stewart
v. City of New York, No. 06 Civ. 15490 (RMB) (FM), 2008 WL 1699797, at *7 (S.D.N.Y. Apr.
9, 2008) (declining to grant an extension of time nunc pro tunc “because [the plaintiff] took no
steps to extend the Rule 4(m) deadline for service within a reasonable time after its expiration”);
see also Zapata v. City of New York, 502 F.3d 192, 199 (2d Cir. 2007) (affirming Rule 4(m)
dismissal where plaintiff “made no effort to effect service within the service period, neglected to
ask for an extension within a reasonable period of time, and has advanced no cognizable excuse
for the delay”); Gerena, 617 F.3d at 201 (affirming dismissal of claim under Rule 4(m) because
the plaintiffs served a defendant outside the 120-day period and “had neither sought nor received
an extension of time to serve” that defendant).
Plaintiffs’ counsel asserts that he was “able to verify contact information for Handspike”
after AMI settled the case. (Brown Aff. ¶ 6.) AMI allegedly “entered into a contract” with
Handspike “relating to the story that is the subject of the litigation,” and “mailed correspondence
to Handspike at his address at 2464 Mc[A]fee Rd.” (Id. ¶ 5.) But Plaintiffs provide no reason
that the information regarding Handspike’s address was not ascertainable from AMI much earlier
than the date of the settlement. In particular, there is no evidence that Plaintiffs sought
information concerning Handspike’s whereabouts through discovery from AMI. See Spinale,
352 F. App’x at 600 (holding that the plaintiffs’ “failure to take basic measures, e.g., serving the
government[, a co-defendant in the case,] with an interrogatory requesting [a defendant’s]

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address, evidences negligence”); Vaher, 916 F. Supp. 2d at 420 (finding no good cause for a
Rule 4(m) extension where the plaintiff “blatantly and continually failed to pursue any of the
many possible methods of discovering the information that he has now been demanding for more
than a year”).
Plaintiffs also contend that Handspike sought to evade service. If established, a
defendant’s evasion of service may constitute good cause. See Cobalt Multifamily Investors I,
LLC v. Arden, No. 06 Civ. 6172 (KMW) (MHD), 2014 WL 3798183, at *2 n.1 (“[T]he Receiver
speculates that Defendant intentionally evaded service, which other courts have found constitutes
‘good cause.’” (citing case law)). The affidavit of Plaintiffs’ counsel contains a hearsay
statement from Handspike’s cousin, who is asserted to have said that she was “told to tell [the
process server] that Handspike would never be there.” (Brown Aff. ¶ 7.) Apparently on this
basis, counsel avers “upon information and belief” that Handspike was attempting to evade
service. (Id. ¶ 8.)
The Court cannot find good cause based on evasion from the evidence presented. The
fact remains that the address where Plaintiffs ultimately effected service on Handspike in May
2014 is the exact address Plaintiffs already had obtained at the time of their first attempt to serve
Handspike. (See Brown Aff. ¶ 6.) Plaintiffs have provided no cogent reason why Handspike’s
purported evasion prevented them from serving Handspike at that same address at any point prior
to May 2014, particularly since they have presented no evidence that they made other efforts to
locate Handspike or determine where he could be served in the intervening time.
Plaintiffs have not established a justifiable reason for failing to serve Handspike for more
than a year after this case was filed, nor that the delay was due to circumstances beyond their
control. Accordingly, the Court cannot find that Plaintiffs have demonstrated good cause.

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B.

Discretionary Extension

While a court “may grant an extension in the absence of good cause, . . . it is not required
to do so.” Zapata, 502 F.3d at 197. “To obtain a discretionary extension absent a showing of
good cause, ‘the plaintiff must ordinarily advance some colorable excuse for neglect.’” Smith v.
Bray, No. 13 Civ. 7172 (NSR) (LMS), 2014 WL 5823073, at *6 (S.D.N.Y. Nov. 10, 2014)
(quoting Zapata, 502 F.3d at 198 n.7). Courts deciding whether to grant a discretionary
extension in the absence of good cause have looked (in addition to the considerations underlying
the good cause analysis) to the following four factors: “(1) whether any applicable statutes of
limitations would bar the action once refiled; (2) whether the defendant had actual notice of the
claims asserted in the complaint; (3) whether defendant attempted to conceal the defect in
service; and (4) whether defendant would be prejudiced by extending plaintiff’s time for
service.” DeLuca, 695 F. Supp. 2d at 66. “Other considerations include whether service was
eventually accomplished, and if so, how long after the required time period.” Cobalt Multifamily
Investors, 2014 WL 3798183, at *2 (internal quotation marks omitted).
On the first factor, the one-year statute of limitations applicable to defamation claims
under New York law, see N.Y. C.P.L.R. § 215(3), would likely bar the refiling of this claim. 6
The fact that the statute of limitations has run is generally viewed as a factor that favors the
plaintiff. See Carroll, 2005 WL 1711184, at *2. However, “it does not guarantee an extension
for every case that may be time-barred if refiled.” Alvarado, 2005 WL 1467893, at *6 (citation
omitted); accord E. Refractories, 187 F.R.D. at 506 (“The fact that plaintiff’s claims may be

6

The Court noted in March 2014 that the allegedly defamatory statements may have been last
republished on March 26, 2012. See Etheredge-Brown v. Am. Media, Inc., 13 F. Supp. 3d 303,
306 (S.D.N.Y. 2014).

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time-barred does not require us to exercise our discretion in favor of plaintiff.”); see also Zapata,
502 F.3d at 197 (“Where . . . good cause is lacking, but the dismissal without prejudice in
combination with the statute of limitations would result in a dismissal with prejudice, we will not
find an abuse of discretion in the procedure used by the district court, so long as there are
sufficient indications on the record that the district court weighed the impact that a dismissal or
extension would have on the parties.” (footnote omitted)).
On the second factor, Plaintiffs have provided some evidence suggesting that Handspike
had actual notice of the claims in the complaint. Plaintiffs’ counsel states “[u]pon information
and belief” that “Handspike was aware of the litigation due to his communication with [AMI] in
2013 and [with] his family at the 2464 Mc[A]fee Rd. address.” (Brown Aff. ¶ 6.) While the
Court takes this assertion into account, it is not strong evidence of Handspike’s notice of this
litigation, as it appears to rely on counsel’s speculation as to Handspike’s communications with
third parties.
The third factor is inapplicable, as there is no evidence that Handspike attempted to
conceal the lack of service. And finally, as to the fourth factor, some prejudice may accrue to
Handspike from the substantial delay in service. See Zapata, 502 F.3d at 198 (“It is obvious that
any defendant would be harmed by a generous extension of the service period beyond the
limitations period for the action, especially if the defendant had no actual notice of the existence
of the complaint until the service period had expired.”). The Court does not give significant
weight to this factor, however, given (1) the possibility that Handspike had actual notice of the
claims in the complaint, and (2) the fact that Handspike has failed to respond to the complaint in
this matter.

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At least one of these four considerations favors Plaintiffs. But the “overlapping equitable
considerations” that informed the Court’s finding that Plaintiffs lack good cause, see Zapata, 502
F.3d at 197—namely, Plaintiffs’ lack of diligence in attempting to serve Handspike within the
limits set by Rule 4(m), their failure to seek an extension within those time limits, and the fact
that he was not served until more than 400 days after the filing of the complaint—weigh heavily
against them. Further, “the Second Circuit has stated clearly that 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 neglect.”
Vaher, 916 F. Supp. 2d at 421 (citing Zapata, 502 F.3d at 198 & n.7); see also Harper v. City of
New York, No. 09 Civ. 5571 (JG) (SMG), 2010 WL 4788016, at *6 (E.D.N.Y. Nov. 17, 2010)
(declining to grant discretionary extension “where the need for the extension results entirely
from counsel’s neglect and the request for it came only after the time for service expired, in
response to a motion to dismiss”), aff’d, 424 F. App’x 36 (2d Cir. 2011) (summary order).
Here, Plaintiffs have not put forth a colorable excuse for failing to serve Handspike for
over a year following the filing of this action. Nor have they advanced any reason that they
neglected to ask this Court for an extension of the time to serve Handspike, and then (after
service was effected) disregarded their claim against Handspike until after they were prompted
by this Court to take further action and then warned of the possibility of dismissal. “[W]here the
party seeking an extension has failed to meet its burden, dismissal is appropriate even if the
practical effect is to bar the plaintiff’s claim.” Spinale, 2005 WL 659150, at *3; see also Zapata,
502 F.3d at 198 (“[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.”); Bogle-Assegai v.
Connecticut, 470 F.3d 498, 509 (2d Cir. 2006) (affirming dismissal of claims where the plaintiff

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“made no effort to show good cause for her failure and never requested an extension of time
during the 600-odd days when the case was pending” after being informed of objections to
service). Accordingly, the Court declines to exercise its discretion to grant a retroactive
extension of time for service under Rule 4(m). The claim against Handspike is dismissed.
III.

Conclusion
For the foregoing reasons, Plaintiffs’ claim against Handspike is DISMISSED under Rule

4(m).
The Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: August 14, 2015
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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