Romano v. C.O. Officers

Filing 112

ORDER dismissing defendant Myers without prejudice and amending Judgment. Signed by Hon. Elizabeth A. Wolford on 12/2/2019. (KAC) (A copy of this Order was mailed to Plaintiff)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DEC 0 2 2019

DISTWCI.^

ANTHONY ROMANO,
ORDER

Plaintiff,
I:I3-CV-00392 EAW

V.

M. QUICK, C.O., C.O. ALOI, C.O., J.
CARDINALE, C.O., C.O. FUNZI, C.O.,
NURSE SEALY, NURSE MILLIA,

MYERS,Psych-Therapist, and SHELLY,
Nurse,
Defendants.

Plaintiff Anthony Romano ("Plaintiff), proceeding pro se, filed this action on April
19, 2013, alleging violations under 42 U.S.C. § 1983 by defendants M. Quick ("Quick"),
C.O. Aloi ("Aloi"), J. Cardinale ("Cardinale"), C.O. Funzi ("Funzi"), Nurse Sealy
("Sealy"), Nurse Millia ("Millia"), Myers, and Shelly (collectively "Defendants"). (Dkt.
I). A jury trial commenced before the undersigned on October 15, 2019 (Dkt. 104), and

the jury returned a no cause verdict on October 16, 2019 (Dkt. 105; Dkt. 107). Judgment
was entered pursuant to the jury verdict in favor of Defendants on November 19, 2019,

including defendant Myers. (Dkt. 111). However, Myers was never served in this action.
For the following reasons, the Court dismisses Myers as a defendant without prejudice
pursuant to Federal Rule of Civil Procedure 4(m), and directs the Clerk of Court to amend

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the Judgment (Dkt. 111) to reflect that the jury verdict was not entered as to Myers, and

further to enter a separate judgment regarding Myers's dismissal without prejudice.
"Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied." Dynegy Midstream
Servs., LP v. Trammochem,451 F.3d 89, 94(2d Cir. 2006)(quoting Omni Cap. Int'l, Ltd.
V. Rudolf Wolff& Co., 484 U.S. 97, 104 (1987)). The Federal Rules of Civil Procedure
provide:

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
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).' "If the plaintiff shows 'good cause for the failure' to serve, the
district court is required to grant an 'appropriate' extension of time in which to
serve." Murray v. Pataki, 378 F. App'x 50, 51-52 (2d Cir. 2010). "[Ijncomplete or

improper service will lead the court to dismiss the action unless it appears that proper
service may still be obtained." Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.

1986)(quotation and emphasis omitted). "As long as the pro se prisoner provides the
information necessary to identify the defendant, the Marshals' failure to effect service

automatically constitutes 'good cause' for an extension oftime within the meaning ofRule

'

Because this action was commenced in 2013,the Court refers to the 120-day service

period as opposed to the 90-day service period imposed by the 2015 Amendment to the
Federal Rules of Civil Procedure.

4(m)." Murray, 378 F. App'x at 52.

In the instant action. Plaintiffs Complaint and Supplemental Complaint were
allowed to proceed to service on March 14, 2014(Dkt. 8), and summonses were issued as
to all Defendants on September 17,2014(Dkt. 9). However, Myers was never served with
a Summons and Complaint. (Dkt. 10). The process receipt of Myers's unexecuted
Summons states the New York State Department of Corrections and Community
Supervision("DOCCS")was "unable to locate an employee with the last name Myers" at
the Elmira Correctional Facility. {Id. at 1).

At the pretrial conference on October 2,2019,the Court notified Plaintiffthat Myers
had not been served, and that as a consequence Myers was subject to dismissal from the

Complaint.^ Plaintiff stated that he had documents showing Myers had in fact been served,
and the Court instructed Plaintiff to bring those papers with him on the day his trial
commenced. In accordance with the Court's direction. Plaintiff submitted his records on
October 15, 2019.

The Court has examined these documents, which are the process receipts for the

issuance and service ofthe summonses in the instant action. (Dkt. 106).^ Plaintiffs records
contain only one document regarding Myers, which states that the summons was issued

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At the pretrial conference. Defendants' counsel indicated that he never appeared on

Myers's behalf because no such defendant exists.

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Although the scanned versions of Plaintiffs records as they appear on the docket

are difficult to read, the Court has also reviewed the hard copies ofPlaintiffs records.
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and mailed to Myers on September 18, 2014. {Id. at 1). However, Plaintiffs records do
not contain a process receipt regarding the unexecuted summons or proof of service as to
Myers. In other words, the record before the Court indicates that Myers was never served,
and that Plaintiff was notified that Myers would be dismissed absent proof of service.
Moreover, Plaintiff has not provided sufficient information to identify Myers, and as a
result proper service is not possible. Accordingly, the Court finds it appropriate to dismiss

Myers from the instant lawsuit without prejudice pursuant to Rule 4(m).
Because Myers was never served and never appeared in the instant action, the trial
did not proceed against Myers. Nor was Myers listed as a defendant on the jury verdict

sheet. (Dkt. 107). Therefore, Judgment regarding a jury verdict in Myers's favor was
entered in error in this case on November 19, 2019 (Dkt. Ill), and the Court finds it

appropriate to amend the Judgment to reflect that ajury verdict was not entered as to Myers,
and for a separatejudgment to enter dismissing without prejudice the claims against Myers.
See Fed. R. Civ. P. 60(a)("The court may correct a clerical mistake or a mistake arising

from oversight or omission whenever one is found in a judgment, order, or other part of
the record. The court may do so on motion or on its own, with or without notice."); see

also Taype-Miranda v. Cruz, No. 10 Civ. 7770(PAC)(KNF), 2013 WL 3716896, at *1
(S.D.N.Y. July 16, 2013)(directing the clerk of court to enter judgment that the action was

dismissed without prejudice after dismissal pursuant to Rule 4(m)); Abedel v. United
States, No. 06-CV-6817, 2007 WL 2323526, at *1 (E.D.N.Y. Aug. 10, 2007)(same).
For the foregoing reasons. Defendant Myers is dismissed from the instant action

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without prejudice pursuant to Federal Rule of Civil Procedure 4(m). The Clerk of Court is
instructed to amend the Judgment entered on November 19, 2019(Dkt. 111), to reflect that
a jury verdict was not entered as to Myers, and further to enter a separate judgment as to

Myers regarding his dismissal without prejudice by Order of the Court.
SO ORDERED.

)ETH_
tates District Judge
Dated: December 2, 2019
Rochester, New York

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