Nicholas v. Bratton et al

Filing 156

OPINION AND ORDER re: 134 MOTION to Dismiss for Lack of Jurisdiction (Rule 12(b)(5)) filed by Eugene Whyte. Defendant Eugene Whyte was added as a defendant while this case was already in progress. He moves to dismiss under Rule 12(b) (5), arguing that service was untimely. (As further set forth in this Order.) For the foregoing reasons, Whyte's motion to dismiss is DENIED. The Clerk of Court is directed to close the motion at Docket Number 134. (Signed by Judge J. Paul Oetken on 2/23/2018) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JASON B. NICHOLAS,

Plaintiff,

15-CV-9592 (JPO)

-v-

OPINION AND ORDER

WILLIAM BRATTON, et al.,
Defendants.

J. PAUL OETKEN, District Judge:
Defendant Eugene Whyte was added as a defendant while this case was already in
progress. He moves to dismiss under Rule 12(b)(5), arguing that service was untimely. For the
reasons that follow, the motion is denied.
I.

Legal Standard
Rule 4(m) of the Federal Rules of Civil Procedure requires a defendant to be served with

the summons and complaint within 90 days after the complaint is filed. However, courts must
excuse untimely service if good cause is shown. Id. To determine whether a plaintiff has
demonstrated good cause, courts generally consider three factors: (1) whether the delay resulted
from inadvertence or whether a reasonable effort to effect service has occurred, (2) prejudice to
the defendant, and (3) whether the plaintiff had moved for an extension of time to serve.
Echevarria v. Dep’t of Corr. Servs., 48 F. Supp. 2d 388, 392 (S.D.N.Y. 1999).
II.

Discussion
Nicholas has shown good cause to excuse the late service on Defendant Whyte. First, at

the time Whyte was added, Nicholas was still proceeding pro se. While the Court had issued an
order of service when this suit was initially filed (see Dkt. No. 7), it did not do so again when it
approved the addition of Whyte as a defendant. Given that Nicholas may have reasonably

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expected the Court to issue a second order of service, Nicholas’s initial failure to act is
excusable. See Jones v. Westchester Cty., 182 F. Supp. 3d 134, 144 (S.D.N.Y. 2016).
Second, Nicholas encountered a technical issue that prevented him from obtaining a
summons. Specifically, when granting the motion to file a Second Amended Complaint, the
Court deemed the attached exhibit as the operative complaint. (See Dkt. No. 99 at 6.) However,
the Court’s electronic filing system requires a standalone complaint in order to issue a summons
(i.e., the complaint must be filed under its own docket entry). The Court eventually remedied the
defect by ordering that the Complaint be refiled (see Dkt. No. 125), but Nicholas’s counsel made
a good-faith effort to remedy the problem in the interim. See Castro v. Manhattan E. Suite
Hotel, No. 01 Civ. 7912, 2002 WL 426221, at *2 (S.D.N.Y. Mar. 19, 2002). Accordingly, there
is good cause to excuse the untimely service.
III.

Conclusion
For the foregoing reasons, Whyte’s motion to dismiss is DENIED. The Clerk of Court is

directed to close the motion at Docket Number 134.
SO ORDERED.
Dated: February 23, 2018
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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