Klein v. United Parcel Service et al

Filing 9

OPINION AND ORDER: Plaintiff has provided no indication of a good faith effort on his part to prosecute this case. Thus, the Court finds that Plaintiff has failed to set forth a sufficient explanation for his dilatory conduct. For the reasons set fo rth herein, plaintiff's motion to reopen the case is DENIED. The Clerk of the Court is respectfully directed to mail a copy of the instant Opinion and Order to Plaintiff. (Signed by Judge Edgardo Ramos on 9/17/2014) (kgo) Modified on 9/17/2014 (kgo).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHMUEL KLEIN,
Plaintiff,

OPINION AND ORDER
11 Civ. 2044 (ER)

– against –
UNITED PARCEL SERVICE, et al.,
Defendants.

Ramos, D.J.:
Presently before the Court is Plaintiff’s request to reopen the case. Doc. 8 (“Pl.’s Ltr.”).
For the reasons set forth below, the application is DENIED.
I.

Background
Plaintiff Shmuel Klein (“Klein” or the “Plaintiff”) initiated the instant action by filing the

Complaint on March 24, 2011. Doc. 1. 1 A summons was issued that day, allowing for
immediate service. During the following eleven months, Plaintiff neither served the Defendants
nor communicated with the Court in any regard. Thus, on February 6, 2012, the Court issued an
order warning Plaintiff that the action would be dismissed without prejudice unless within thirty
days—i.e., on or before March 6, 2012—he either (1) filed proof of service with the Clerk of the
Court or (2) explained in writing why a further extension of the time limit for service may be
necessary. Doc. 5.
In light of Plaintiff’s failure to file proof of service and failure to respond to the Court’s
February 6, 2012 order, the Court dismissed the action without prejudice on March 27, 2012,

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Plaintiff claims, inter alia, that Spring Valley police officers deprived him of property without due process of law
and falsely arrested him in connection with a dispute over packages that had been delivered by Defendant United
Parcel Service. The Complaint also raises state law claims, including negligence and assault.

pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 2 Doc. 6. The Clerk of the Court
closed the case on March 28, 2012. Doc. 7.
More than two years of silence passed. Then, on September 8, 2014, the Court received
its first correspondence from Plaintiff since the filing of the Complaint in March 2011: a letter
dated September 4, 2014 requesting that the matter be reopened. See Pl.’s Ltr.
Plaintiff represents that, after he filed the instant matter, the “District Attorney”
(unnamed) “prosecuted [him] … and obtained convictions.” Pl.’s Ltr. He does not specify
whether the prosecution was related to the Section 1983 claims asserted in his Complaint, or of
which offenses he was convicted. However, he claims that the prosecution and convictions are
why he failed to timely effect service. Id. Plaintiff contends that the Court should now restore
the matter to the docket because the New York State Appellate Term reversed both of his
convictions on or about February 6, 2014. Id. Plaintiff further notes that “several months after
[February 6, 2014], the prosecutor stated [that] he [would] no longer pursue the matter.” Id.
II.

Discussion
The Court construes Plaintiff’s request as a motion to reopen pursuant to Rules 60(b)(1)

and (6) of the Federal Rules of Civil Procedure, which state:
On motion and upon such terms as are just, the court may relieve a party ... from a
final judgment ... for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect ... or
(6) any other reason justifying relief from the operation of the judgment.

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Rule 4(m) provides:
If service of the summons and complaint is not made upon the defendants within 120 days after the
filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff,
shall dismiss the action without prejudice as to that defendant or direct that service be effected within
a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend
the time for service for an appropriate period.

Fed. R. Civ. P. 4(m).

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The motion shall be made within a reasonable time, and for reason[ ] (1) ... not
more than one year after the judgment, order, or proceeding was entered or taken.
Major v. Coughlin, No. 94 Civ. 7572 (DLC), 1997 WL 391121, at *2 (S.D.N.Y. July 11, 1997)
(quoting Fed. R. Civ. P. 60(b)); see also, e.g., Meilleur v. Strong, 682 F.3d 56, 60 (2d Cir. 2012)
(citing Lora v. O’Heaney, 602 F.3d 106, 111 (2d Cir. 2010) (treating an untimely motion for
reconsideration as a Rule 60(b) motion)), cert. denied, 133 S. Ct. 655 (2012).
Rule 60(b)(1) offers relief from a judgment or order where the moving party
demonstrates, inter alia, “excusable neglect.” Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d
121, 125 (2d Cir. 2011) (quoting Fed. R. Civ. P. 60(b)(1)). Courts will find excusable neglect
where a party’s failure to comply with filing deadlines is attributable to negligence. Canfield v.
Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997) (citing Pioneer Investment
Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 388 (1993)). Where there has been
abuse by the parties, however, a finding of excusable neglect is unwarranted. Lucas v. The Educ.
Alliance, No. 98 Civ. 6280 (DLC), 1999 WL 287330, at *1 (S.D.N.Y. May 7, 1999). “‘The
determination is at bottom an equitable one, taking account of all relevant circumstances
surrounding the party’s omission,” including “prejudice to the adversary, the length of delay, the
reason for the error, the potential impact on the judicial proceedings, whether it was within the
‘reasonable control of the movant,’ and whether the movant acted in good faith.” Id. (citing
Pioneer, 507 U.S. at 395).
Rule 60(b)(6), the catchall subsection of the Rule, applies “only when there are
extraordinary circumstances justifying relief,” or “when the judgment may work an extreme and
undue hardship.” Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) (citations omitted).
Because (b)(6) can only be invoked when other grounds for relief are unavailable, mistake,
inadvertence, surprise or excusable neglect cannot serve as grounds for relief thereunder. Id.
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“Motions under Rule 60(b) are addressed to the sound discretion of the district court and
are generally granted only upon a showing of exceptional circumstances.” Mendell In Behalf of
Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff’d sub nom., Gollust v. Mendell,
501 U.S. 115 (1991). While “pro se litigant[s] ... should not be impaired by the harsh application
of technical rules, they are not excused from the requirement that they produce highly
convincing evidence to support a Rule 60(b) motion.” Dais v. Lane Byrant, Inc., No. 97 Civ.
2011 (PKL) (RLE), 2002 WL 417242, at *2 (S.D.N.Y. Mar. 15, 2002) (internal citations and
quotation marks omitted), aff’d sub nom. Dais v. Lane Bryant, Inc., 113 F. App’x 417 (2d Cir.
2004); see also Green v. Unwin, 563 F. App’x 7, 8 (2d Cir. 2014) (summary order) (affirming
denial of pro se litigant’s motion to reconsider dismissal for failure to effect service).
Here, the Court finds that Plaintiff’s failure to effect service, request an extension from
the Court or pursue his claims remains inexplicable. Although he argues that the summons and
complaint were not timely served because of his prosecution and convictions, Plaintiff fails to
explain why the prosecution and convictions (for unnamed offenses) rendered him unable to seek
an extension or otherwise communicate with the Court for a period of more than two years, or
why he waited to move to reopen this case until after the prosecution concluded. Nor is the
Court aware of any reason why a prosecution or conviction would necessarily render Plaintiff
unable to effect service or request relief from the Court. 3 See, e.g., Meilleur v. Strong, No. 10
Civ. 5371 (PGG), 2011 WL 12410769, at *1 (S.D.N.Y. May 26, 2011) (dismissing pro se
plaintiff’s Section 1983 claim for failure to effect service and denying Rule 60(b) motion to
reopen where plaintiff offered no explanation as to why she could not timely effect service, then
failed to explain the multi-month lag between service and her motion to reopen), aff’d, 682 F.3d

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Plaintiff does not claim that he was incarcerated during the prosecution, and in any event, incarceration does not
preclude pro se litigants from corresponding with the Court.

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at 64; cf. Rosario v. Cirigliano, No. 10 Civ. 6664, 2011 WL 4063257, at *6 (S.D.N.Y. Sept. 12,
2011) (reopening case where the plaintiff did not attempt to effect service during the 120–day
period or seek an extension, but “show[ed] that an effort was made to effect service (if after the
120–day period ran), and, more importantly, advanced a colorable excuse for the failure”).
Indeed, Plaintiff “has provided no indication of a good faith effort on his part to prosecute this
case.” Canini v. U.S. Dep’t of Justice Fed. Bureau of Prisons, No. 04 Civ. 9049 (CSH), 2008
WL 818696, at *5 (S.D.N.Y. Mar. 26, 2008) (denying Rule 60(b) motion to reopen). Thus, the
Court finds that Plaintiff has failed to set forth a sufficient explanation for his dilatory conduct.
Moreover, a motion under Rule 60(b) “must be made within a reasonable time,” and, if
made under Rule 60(b)(1), “no more than a year after the entry of the judgment or order or the
date of the proceeding.” Fed. R. Civ. P. 60(c)(1). Plaintiff’s delay in seeking to reopen the case
for three and one-half years—from March 2011 to September 2014—is of significant duration.
See Adams v. Yolen, 513 F. App’x 64, 66 (2d Cir. 2013) (lapse of more than two years “between
the event that triggered the right to reopen and the actual motion to reopen is a ‘significant
delay’”); U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 255 (2d Cir. 2004) (finding 17month delay “significant”); Shannon v. Gen. Elec. Co., 186 F.3d 186, 194 (2d Cir. 1999)
(deeming a one and a half year delay “a prolonged” failure). Nor has Plaintiff described any
“extraordinary circumstances” that would entitle him to relief. Cf. Golden Oldies, Ltd. v.
Scorpion Auction Grp., Inc., 199 F.R.D. 98, 99 (E.D.N.Y. 2001) (finding that Rule 60(b)(6)
motion to reopen, filed more than two years after order of dismissal, was made within a
reasonable time where defendant’s evasion of service created “extraordinary circumstances,” and
plaintiff brought the motion three months after the defendant was finally located and served).

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