Hop Wah v. Vance et al

Filing 40

ORDER: NOW, THEREFORE, it is hereby ORDERED, as follows: In accordance with Rule 4(d) of the Federal Rules of Civil Procedure, the Clerk of Court is respectfully directed to complete a USM-285 with Adebola's address, which is redacted at ECF No. 21, and deliver all documents necessary to the Marshals Service, which shall include Adebola's summons and the Amended Complaint, for the Marshals Service to mail waiver of service paperwork. The Marshals Service is respectfully directed to com plete and file the USM-285 at two separate intervals: (1) when the waiver of service paperwork is mailed, and (2) when the Acknowledgement of Receipt of Summons and Complaint is received, but no later than 30 days after the waiver of service paperwor k is mailed. The City is relieved of any further obligations under the Valentin Order. The deadline for Crosby to answer or otherwise respond to the Amended Complaint is adjourned sine die until further Order from the Court. If service is not effectu ated on Adebola and Plaintiff fails to provide an address for Adebola, the Court may recommend to District Judge Schofield that Adebola be dismissed from this action. SO ORDERED. USM-285 Form due by 3/6/2024. Request for Issuance of Summons due by 3/6/2024. (Signed by Magistrate Judge Stewart D. Aaron on 2/05/2024) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
John T. Hop Wah,

2/5/2024
Plaintiff,
-against-

1:23-cv-01420 (LGS) (SDA)
ORDER

Adeyemi Adebola and Cordell Crosby,
Defendants.
STEWART D. AARON, United States Magistrate Judge:
WHEREAS, after initial attempts to serve Defendants Adeyemi Adebola (“Adebola”) and
Cordell Crosby (“Crosby” and with Adebola, “Defendants”) proved unsuccessful, 1 on
December 4, 2023, District Judge Schofield issued a second Order of Service directing the Clerk
of Court to issue summonses for Defendants and have the Marshals Service re-serve them at
the redacted addresses listed therein (12/4/23 Order of Service, ECF No. 21, at 1); and
WHEREAS, on December 7, 2023, summonses were issued to Defendants (ECF No. 23);
and
WHEREAS, on January 19, 2024, Adebola’s Process Receipt and Return of Service (“USM285”) was filed on the ECF docket as unexecuted after the Marshals Service made three
attempts to serve the summons and the Amended Complaint (ECF No. 36); and
WHEREAS, on January 25, 2024, the Court ordered the City of New York (the “City”)
(proceeding as an interested party) to comply with the Valentin Order, as defined within the
Order, to provide Adebola’s service address “to the extent it is able after diligence effort” or, if

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For a full recounting of the Procedural Posture of this case to date, see 1/25/24 Order, ECF No. 37.

the address was unknown, to inform the Court “of the efforts expended to locate Adebola’s
service address” (1/25/24 Order, ECF No. 37, at 4); and
WHEREAS, on February 1, 2024, the New York City Law Department, Office of the
Corporation Counsel (the “Corporation Counsel”), which represents the City, filed a letter in
accordance with the Valentin Order (City 2/1/24 Ltr., ECF No. 39); and
WHEREAS, Corporation Counsel represented to the Court that it contacted the New York
City Department of Homeless Services and “requested a search of their records pertaining to”
Adebola (City 2/1/24 Ltr. at 2); and
WHEREAS, Corporation Counsel represented to the Court that it conducted an
independent search of public records to locate Adebola’s address (City 2/1/24 Ltr. at 2); and
WHEREAS, Corporation Counsel concluded, upon information and belief, that the
address previously provided to the Court is the most up-to-date address available (City 2/1/24
Ltr. at 2; see also 12/4/23 Order of Service, at 2); and
WHEREAS, Rule 4(d) of the Federal Rules of Civil Procedure permits waiver of service of
the summons; provided, that the Notice of a Lawsuit and Request to Waive Service of a
Summons compiles with the following (1) is in writing and addressed to the individual
defendant, (2) provides the name of the Court where the complaint is filed, (3) is accompanied
with a copy of the complaint, 2 copies of the waiver form (appended to Rule 4), and prepaid
means for returning the form, (4) informs the defendant, using the waiver form appended to
Rule 4, of the consequences of waiving and not waiving service, (5) provides the date when the
request is sent, (6) gives the defendant reasonable amount of time (of at least 30 days or 60

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days if the defendant is outside the judicial district of the United States), and (7) is sent by firstclass mail or other reliable means; and
WHEREAS, Rule 4(m) of the Federal Rules of Civil Procedure provides that the Court may
extend the time for service for an appropriate period; and
WHEREAS, individual defendants may be dismissed from civil actions when they are not
served and the plaintiff is unable to provide an additional service address. 2
NOW, THEREFORE, it is hereby ORDERED, as follows:
1.

In accordance with Rule 4(d) of the Federal Rules of Civil Procedure, the Clerk of

Court is respectfully directed to complete a USM-285 with Adebola’s address, which is redacted
at ECF No. 21, and deliver all documents necessary to the Marshals Service, which shall include
Adebola’s summons and the Amended Complaint, for the Marshals Service to mail waiver of
service paperwork. The Marshals Service is respectfully directed to complete and file the USM285 at two separate intervals: (1) when the waiver of service paperwork is mailed, and (2) when
the Acknowledgement of Receipt of Summons and Complaint is received, but no later than 30
days after the waiver of service paperwork is mailed.
2.

The City is relieved of any further obligations under the Valentin Order.

3.

The deadline for Crosby to answer or otherwise respond to the Amended

Complaint is adjourned sine die until further Order from the Court.

Cash v. Brown, No. 12-CV-04652 (LAK), 2014 WL 4631876, at *2 (S.D.N.Y. Sept. 16, 2014) (adopting
report and recommendation to dismiss after providing pro se plaintiff nine (9) extra months to service
defendants); Rosano v. Adelphi University, No. 11-CV-00148, 2011 WL 8320457, at *2 (E.D.N.Y. Dec. 6,
2011) (dismissing complaint when pro se plaintiff failed to effect service after multiple warnings and
provided over ten (10) months to effect service); Castro v. Cusack, No. 15-CV-06714 (ENV) (LB), 2019 WL
3385218, at *5 (E.D.N.Y. July 26, 2019) (dismissing pro se complaint for failure to provide proper
addresses).
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4.

If service is not effectuated on Adebola and Plaintiff fails to provide an address

for Adebola, the Court may recommend to District Judge Schofield that Adebola be dismissed
from this action.
SO ORDERED.
DATED:

New York, New York
February 5, 2024

______________________________
STEWART D. AARON
United States Magistrate Judge

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