Stevens v. Landes et al
DECISION AND ORDER DISMISSING this case for insufficient service of process and failure to prosecute; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 8/7/2017. (MEAL) Copy mailed to Plaintiff. - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
VICKI LANDES, NATALIE HENRY,
CATHERINE VELZY, AND FIDELIS CARE, 1
In this action, pro se plaintiff Tracy Stevens 2 asserts Family Medical Leave Act
(29 U.S.C. §§ 2601, et seq.) claims against defendants Vicki Landes, Natalie Henry,
Catherine Velzy, and Fidelis Care (“Defendants”). (Docket Nos. 9, 10.) Service on
Defendants, however, has not been properly completed, nor has Plaintiff dutifully
prosecuted this action. Consequently, this case will be dismissed for insufficient service
of process and failure to prosecute.
Stevens filed this action and moved to proceed in forma pauperis on June 18,
2013. (Docket No. 1.) She filed an amended complaint on April 29, 2014 (Docket No.
7) and a second amended complaint on April 30, 2014 (Docket No. 9), in response to
Stevens also named Matrix Absence Management, State Insurance Plan, and The Hartford Insurance
Company as defendants, but the Honorable Richard J. Arcara dismissed them from this case on April 15,
2015. (See Order, Docket No. 10.)
Cognizant of the distinct disadvantage that pro se litigants face, federal courts routinely read their
submissions liberally and interpret them to raise the strongest arguments that they suggest. See Haines
v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed.2d 652 (1972); Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994). Since Stevens is a pro se litigant, this Court has considered her submissions
and arguments accordingly.
the court’s initial screening order, which also granted her request to proceed in forma
pauperis (Docket No. 4).
On April 15, 2014, the court screened the second amended complaint and found
that Stevens’s FMLA claims against Defendants should proceed to service. (Docket
No. 10.) Because Stevens is proceeding in forma pauperis, the court directed the
United States Marshal Service to serve the summons and second amended complaint
on Defendants. (Docket No. 10.)
The docket reflects that summonses were issued for Defendants and sent to the
United States Marshal Service for service on May 6, 2015, and again on November 30,
The return of summons for each individual defendant was returned as
“unexecuted,” because each defendant had left Fidelis Care’s employ. (Docket No. 16.)
The return of summons for Fidelis Care was return as “personally served” on a Human
Resources Specialist at Fidelis Care’s Buffalo facility on December 1, 2015. (Docket
On December 21, 2015, Defendants filed a Motion to Dismiss for insufficient
service of process, followed by two subsequent reply submissions. (Docket No. 12, 14,
19.) Stevens responded to Defendants’ motion on August 8, 2016. (Docket No. 20.)
On December 13, 2016, this Court denied Defendants’ Motion to Dismiss and
granted Stevens an additional 90 days to properly effectuate service. (Docket No. 21.)
This Court explained how service could be accomplished and warned Stevens that this
action could be dismissed for failure to prosecute if she did not accomplish service as
directed. (Docket No. 21.) Nonetheless, 90 days passed and Stevens failed to properly
serve Defendants. (Docket No. 22.)
On May 12, 2017, this Court sua sponte extended Stevens’s time in which to
effectuate service by 30 days and again warned her that her case could be dismissed
for insufficient service of process or failure to prosecute or both if she failed to effectuate
service as directed. (Docket No. 23.) Stevens again failed to accomplish service.
On June 19, 2017, this Court again sua sponte extended Stevens’s time to
effectuate service and indicated that it would be her final extension of time to do so.
(Docket No. 24.)
This Court also warned Stevens that her complaint could be
dismissed if she failed to properly effectuate service and prosecute her case. (Docket
No. 24.) Stevens again failed to serve Defendants. (Docket No. 25.)
Since the date of this Court’s initial decision granting Stevens 90 days to properly
effectuate service (Docket No. 21), more than 225 days have passed and Stevens has
taken no action in this case, despite having been sent multiple orders and declarations,
none of which have been returned as undeliverable.
Dismissal of this case is warranted on two fronts: insufficient service of process
and failure to prosecute.
Insufficient Service of Process
Defendants initially moved to dismiss on the basis that Stevens failed to properly
serve them within 120 days of filing her second amended complaint, as required by the
version of Rule 4 (m) of the Federal Rules of Civil Procedure in effect at that time. 3
(Docket No. 12.) Defendants were correct on that point, but this Court determined that,
By amendment effective December 1, 2015, the time for serving a complaint under Rule 4(m) was
reduced from 120 days to 90 days.
given her in forma pauperis status, Stevens was not responsible for the service failures.
(Docket No. 21.)
Once a plaintiff is granted permission to proceed in forma pauperis, the
responsibility for effecting service of summons and complaint shifts to the court. See 28
U.S.C. § 1915 (d); Rule 4 (c)(3) (requiring service by United States Marshal Service in
cases where the plaintiff proceeds in forma pauperis); Wright v. Lewis, 76 F.3d 57, 59
(2d Cir. 1996) (noting that the granting of in forma pauperis status “shifted the
responsibility for serving the complaint from [the plaintiff] to the court”). Consequently
because the court was responsible for the failure to serve, this Court found that good
cause existed under Rule 4 (m) to extend Stevens’s time to complete service. See
McCalmann v. Partners in Care, No. 01-CV-5844, 2002 WL 856465, *1 (S.D.N.Y. Apr.
25, 2002) (finding that the Marshals Service’s failure to properly effect service of
process constitutes good cause within the meaning of Rule 4 (m)).
In so finding, this Court explained to Stevens precisely what she needed to
provide the Marshals Service so that it could accomplish service and it further advised
Stevens that it was her responsibility to confirm with the Marshals Service that service
had been accomplished and, if necessary, to request an extension of time for service.
See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012). And to further assist Stevens,
this Court directed the Clerk of Court to send her four service packets and four blank
Yet without explanation, and with no contact in more than 225 days, Stevens
failed to properly serve Defendants as directed. And she did so despite this Court’s
multiple warnings that her failure to act could result in dismissal of her case. Stevens’s
conduct in this regard is not reasonable and no cause whatsoever has been submitted
to excuse her multiple failures. Consequently, this case will be dismissed under Rule
12 (b)(5) for insufficient service of process.
Failure to Prosecute
This case separately warrants dismissal based on Stevens=s failure to prosecute,
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:
If the plaintiff fails to prosecute or to comply with these rules
or a court order, a defendant may move to dismiss the action
or any claim against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any
dismissal not under this ruleCexcept one for lack of
jurisdiction, improper venue, or failure to join a party under
Rule 19Coperates as an adjudication upon the merits.
FED. R. CIV. P. 41(b).
Where the defendant has not moved under Rule 41(b), a court may nonetheless
dismiss a case sua sponte. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S. Ct.
1386, 8 L. Ed. 2d 734 (1982); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d
Cir. 1982). In Link, the Supreme Court noted that: A[t]he authority of a court to dismiss
sua sponte for lack of prosecution has generally been considered an >inherent power,=
governed not by rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expeditious disposition of
cases.@ Link, 370 U.S. at 630-31.
Rule 41 (b) does not define what constitutes failure to prosecute. But the Second
Circuit has stated that failure to prosecute Acan evidence itself either in an action lying
dormant with no significant activity to move it or in a pattern of dilatory tactics.@ Lyell
Theatre Corp., 682 F.2d at 42. Dismissal pursuant to Rule 41(b) falls within the court’s
discretion. See id. at 42-43 (Athe scope of review of an order of dismissal is confined
solely to whether the trial court has exercised its inherent power to manage its affairs
within the permissible range of its discretion@). It is, however, Aa harsh remedy to be
utilized only in extreme situations.@ Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d
Cir. 1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)
(per curiam)); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir.
1980) (discussing the sanction of dismissal for failure to prosecute as Apungent, rarely
used, and conclusive@). This is particularly true in cases involving pro se litigants, where
dismissal for failure to prosecute should be granted only Awhen the circumstances are
sufficiently extreme.@ Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Nita v.
Connecticut Dep=t of Envtl. Prot., 16 F.3d 482, 487 (2d Cir. 1994)).
The following factors, none of which is dispositive, must be considered in
determining whether dismissal for failure to prosecute is warranted: (1) the duration of
the plaintiff=s failures; (2) whether the plaintiff received notice that further delays would
result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay;
(4) whether an appropriate balance has been struck between alleviating the court=s
calendar congestion and protecting the litigants= due process rights; and (5) whether
lesser sanctions would be appropriate. See United States ex rel. Drake v. Norden Sys.,
Inc., 375 F.3d 248, 255 (2d Cir. 2004); Nita, 16 F.3d at 485; Feurtado v. City of New
York, 225 F.R.D. 474, 477 (S.D.N.Y. 2004) (quoting Jackson v. City of New York, 22
F.3d 71, 74 (2d Cir. 1994)).
Here, these factors weigh in favor of dismissal. Stevens has been inattentive to
this case and has ignored this Court’s multiple orders.
More than 225 days have
passed since this Court directed Stevens to properly serve Defendants with her second
amended complaint. Stevens has been warned at least three times that her continued
failure to adhere to this Court’s directives could result in dismissal of her case.
Defendants, meanwhile, continue to be prejudiced by the passage of time. This Court
has made every effort to protect Stevens’s Due Process rights and to assist her in
accomplishing proper service, but she has not taken advantage of these efforts and
instead has taken no action and been entirely non-communicative since December
In light of these circumstances, this Court finds that no sanction short of
dismissal would be appropriate. Dismissal under Rule 41 (b) is therefore warranted.
Because Stevens has neither accomplished service of process as directed nor
dutifully prosecuted this action, this case will be dismissed for insufficient service of
process and failure to prosecute.
IT HEREBY IS ORDERED, that this case is DISMISSED for insufficient service
of process and failure to prosecute.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
August 7, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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