Kingsberry v. City of New York et al
Filing
40
MEMORANDUM OPINION AND ORDER.....Kingsberry's April 22 motion for an extension of time to serve the Individual Defendants is denied. All claims against Cooper and Grinnage are dismissed. (Signed by Judge Denise L. Cote on 5/13/2016) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DARNELLA KINGSBERRY as administrator
:
of the estate of DARELL KINGSBERRY,
:
:
Plaintiff,
:
:
-v:
:
CITY OF NEW YORK, NEW YORK CITY
:
DEPARTMENT OF CORRECTIONS, CORRECTION :
OFFICER COOPER, CORRECTION OFFICER
:
GRINNAGE, CORRECTIONS OFFICER
:
JOHN/JANE DOE(S) #1-2,
:
:
Defendants.
:
:
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APPEARANCES
15cv1481 (DLC)
MEMORDANDUM OPINION
AND ORDER
For the plaintiff:
Justin Maurice Roper
Nass & Roper Law
14 Penn Plaza, Suite 2004
New York, NY 10001
For the defendants:
Shira Rachel Siskind
New York City Law Department
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
The plaintiff has moved for an extension of time to serve
individual defendants.
For the following reasons, the
application is denied.
Background
The original plaintiff in the above-captioned action,
Darell Kingsberry, filed his complaint on February 27, 2015,
naming as defendants the City of New York (the “City”), the New
York City Department of Corrections (the “DOC”), Corrections
Officer Cooper (“Cooper”), Corrections Officer Grinnage
(“Grinnage”, together with Cooper, the “Individual Defendants”),
and two unnamed corrections officers.
At that time, the
plaintiff was granted leave to proceed in forma pauperis.
The
plaintiff served the City and the DOC on March 4 through a
process server named Anderson Chan.
The plaintiff did not serve
the Individual Defendants.
At a July 10, 2015 conference, fact discovery was scheduled
to close on October 30, 2015.
Expert discovery was to conclude
on January 22, 2016, and a Joint Pretrial Order was due February
19.
On September 4, 2015, defense counsel filed a notice of
suggestion of death.
By order dated February 29, 2016, Darnella
Kingsberry (“Kingsberry”) was substituted as plaintiff because
Darell Kingsberry had died on August 15, 2015.
An Order of
March 4, 2016, revised the schedule for fact and expert
discovery and gave the parties until July 29 to file a Joint
Pretrial Order.
Trial is scheduled for September 2016.
On April 15, Kingsberry submitted a letter requesting an
extension of time to serve the Individual Defendants until April
29, arguing that it had “only recently come to Plaintiff’s
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attention that the named officers were never served,” and that
this failure was an oversight by counsel.1
By Order on April 18,
the Court required Kingsberry to bring a formal motion under
Federal Rule of Civil Procedure 6(b)(1) and required that
Kingsberry notify the Court of the steps that had been taken to
diligently pursue service on the Individual Defendants.
On April 22, Kingsberry submitted a letter in response the
Court’s April 18 Order and filed a motion under Rule 6(b)(1),
arguing that service on the Individual Defendants should have
been carried out by the U.S. Marshals because plaintiff is
proceeding in forma pauperis.
Kingsberry’s letter stated that
(1) neither the plaintiff nor plaintiff’s counsel had taken any
steps to request that service be effectuated by the U.S.
Marshals, (2) no steps had been taken to request an extension of
time to serve the Individual Defendants, and (3) nothing had
been done to advise the Court that the plaintiff required
assistance in determining the addresses of the Individual
Defendants.
The City has opposed the motion; the motion became
fully submitted on April 29.
The April 15 letter motion was incorrectly addressed to
Magistrate Judge Netburn. The parties had been referred to
Magistrate Judge Netburn solely for purposes of settlement.
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Discussion
Under Rule 6(b)(1), the court may extend a deadline after
it has expired if the party’s failure to meet the deadline was
due to excusable neglect.
Fed. R. Civ. P. 6(b)(1).
In
determining whether excusable neglect has been shown, courts are
to consider four factors: (1) the danger of prejudice to the
party opposing the extension; (2) the length of the delay and
its potential impact on judicial proceedings; (3) the reason for
the delay, including whether it was within the reasonable
control of the party seeking the extension; and (4) whether the
party seeking the extension acted in good faith.
In re Am.
Express Fin. Advisors Sec. Litig., 672 F.3d 113, 129 (2d Cir.
2011).
A plaintiff has 120 days2 to serve a defendant with process.
Fed. R. Civ. P. 4(m).
If a plaintiff fails to timely serve a
defendant, the court must either (1) dismiss the action without
prejudice against that defendant, (2) order that service be made
within a specified time, or (3) if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Id.
A party may request
Rule 4 was amended, effective December 1, 2015, to shorten the
time to serve to 90 days. The complaint in this action was
filed before the amendment took effect.
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that service be made by a U.S. Marshal, and when such a request
is made by a party proceeding in forma pauperis, the request
must be granted.
Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d)
(“The officers of the court shall issue and serve all process
. . . in [in forma pauperis] cases.”).
“The failure of the U.S. Marshals Service to properly
effect service of process constitutes ‘good cause’ for failure
to effect timely service, within the meaning of Federal Rule of
Civil Procedure 4(m).”
(2d Cir. 2013).
Walker v. Schult, 717 F.3d 119, 123 n.6
Once a party is granted the right to proceed in
forma pauperis, it “shift[s] the responsibility for serving the
complaint from [the plaintiff] to the court.”
Wright v. Lewis,
76 F.3d 57, 59 (2d Cir. 1996); see also Romandette v. Weetabix
Co., 807 F.2d 309, 311 (2d Cir.1986) (reversing dismissal where
the U.S. Marshals Service failed to effect timely personal
service through no fault of the plaintiff).
A party proceeding in forma pauperis, however, is not
relieved of all responsibility to effectuate service on the
defendants.
First, a party can be required to affirmatively
request that the U.S. Marshals effectuate service.
Dwyer, 507 F.3d 161, 164 (2d Cir. 2007).
Nagy v.
Second, a plaintiff
can be required to verify that service has been made, and if it
becomes apparent that the U.S. Marshals will not timely serve
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the defendants, the plaintiff must advise the Court and request
an extension of time to serve.
Meilleur v. Strong, 682 F.3d 56,
63 (2d Cir. 2012).
According to the guidance promulgated by the Southern
District of New York’s Office of Pro Se Litigation, parties
proceeding in forma pauperis may effectuate service through the
U.S. Marshals Service.
See Office of Pro Se Litigation, IFP
Cases - Service by the U.S. Marshals, available at
http://intranet.nysd.circ2.dcn/prose#Service.
But, the U.S.
Marshals will not effectuate service without a Court order, and
the plaintiff must use a form USM-285, which calls for the names
and addresses of the defendants to be served.
See U.S.
Department of Justice, United States Marshals Service, Form USM285.
Kingsberry has not shown that her failure to timely serve
the Individual Defendants was due to excusable neglect.
With
respect to the first factor, the potential for prejudice, this
action was filed over a year ago, and discovery has been ongoing
for over nine months.
Trial is scheduled for September.
Allowing the Individual Defendants to be brought into the case
at this juncture would likely result in delay.
As to the second
factor, the length of delay, the plaintiff’s request for an
extension comes over nine months after the deadline to serve the
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Individual Defendants.
With respect to the third factor, the
reasons for the delay were in the plaintiff’s control.
Kingsberry admits that she took no steps to request that the
U.S. Marshals effectuate service on the Individual Defendants;
neither she nor her predecessor filed a form USM-285 or
requested the Court’s assistance in effectuating service.
This
is despite the fact that both Kingsberry and the original
plaintiff were represented by counsel for the entirety of this
action, who should have been aware of the lack of service on the
Individual Defendants and taken appropriate action earlier.
Finally, Kingsberry’s argument that the plaintiff was relying on
the U.S. Marshals to serve the Individual Defendants is
undermined by the fact that the plaintiff used a process server,
not the U.S. Marshals, to serve the City and the DOC.
Taking
all these factors into consideration, Kingsberry has not shown
excusable neglect in failing to timely serve the Individual
Defendants.
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Conclusion
Kingsberry’s April 22 motion for an extension of time to
serve the Individual Defendants is denied.
All claims against
Cooper and Grinnage are dismissed.
Dated:
New York, New York
May 13, 2016
__________________________________
DENISE COTE
United States District Judge
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