Linza v. Colvin
Filing
22
DECISION AND ORDER: The Commissioner's motion to dismiss 12 is denied, and the plaintiff's motion for an extension of time to serve the summons and complaint 6 is granted. The Court deems service under Rule 4(i) effective nunc pro t unc. The Commissioner shall file the certified transcript of administrative proceedings within 90 days of the date of this Decision and Order. Plaintiff's motion for judgment on the pleadings is to be filed within 30 days of the filing of the administrative transcript, and the Commissioner shall respond within 30 days. Plaintiff will then have 14 days to reply. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/23/16. (LAS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHEN P. LINZA,
15-CV-567-A
DECISION AND ORDER
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
This case is before the Court on the Acting Commissioner of Social Security’s
motion to dismiss for inadequate service. For the reasons stated below, the motion is
denied.
BACKGROUND
Plaintiff seeks review of the Commissioner’s decision reducing Plaintiff’s Social
Security benefits because of his service in the Air National Guard. 1 Plaintiff filed his
complaint on June 25, 2015, and several days later, he filed a proposed summons for
the Commissioner. The Clerk’s Office issued the summons the next day. The version
of Federal Rule of Civil Procedure 4(m) then in effect required Plaintiff to effect service
within 120 days of the date he filed his complaint.
Less than two months later, Plaintiff filed an affidavit stating that he had served
an employee of the Social Security Administration’s (SSA) Office of the Regional Chief
1
Plaintiff is a retired Air National Guardsman. Docket No. 6-1 ¶ 5. The Commissioner contends that the
Windfall Elimination Provision (WEP), 42 U.S.C. § 415, requires the Commissioner to reduce Plaintiff’s
Social Security benefits to account for his receipt of retirement benefits from his service in the National
Guard. The WEP, however, does not apply to those who receive certain payments as a result of “service
as a member of a uniformed service.” 42 U.S.C. § 415(d)(3)(B). Thus, the sole issue in this case is
whether the WEP applies to Plaintiff’s service in the National Guard. The only court that appears to have
addressed this issue ruled in favor of the plaintiff. See Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011).
1
Counsel in New York City, which handles Social Security appeals in this District. See
Docket No. 5. The Court’s Standing Order for Social Security appeals requires the
Commissioner to answer a complaint within 90 days of service. 2 The Commissioner did
not do so.
On October 23, 2015, Rule 4(m)’s 120-day service period ended. Several weeks
later—after Plaintiff did not receive the Commissioner’s answer, which Plaintiff’s counsel
found “very unusual” (Docket No. 6-1 ¶ 14)—Plaintiff served a copy of the summons
and complaint on the Attorney General in Washington, D.C.; the Buffalo Office of the
SSA; and, again, the SSA’s Regional Chief Counsel in New York City.
A week passed, and the Commissioner still did not file an answer.
Plaintiff
believed the Commissioner had been properly served, but on November 25—in what
Plaintiff characterized as “an abundance of caution,” and despite “believe[ing] the
Defendant [to] ha[ve] been properly served”—Plaintiff filed a motion for an extension of
time to serve the summons and complaint, in order to cure any potential service defect.
See Docket No. 6-1. The Court scheduled a status conference for one week later, but
the matter was not called.
Plaintiff’s counsel then corresponded with staff at the
Commissioner’s regional and local offices about Plaintiff’s efforts to serve the
Commissioner. Docket No. 14 ¶¶ 16-17.
On February 23, 2016, Plaintiff filed affidavits proving that the complaint had
been served on the Department of Justice in Washington, D.C.; the SSA’s Regional
Chief Counsel in New York City; and the Buffalo Office of the SSA. That same day, the
Commissioner filed a motion to dismiss for inadequate service. See Docket No. 12. In
2
A copy of the Court’s Standing Order may be found at http://www.nywd.uscourts.gov/rules-individuallocal-federal.
2
response, Plaintiff’s counsel served the U.S. Attorney for the Western District of New
York while acknowledging that, for the past several months, he had “diligently, though
imperfectly, attempted to properly serve the Defendant and to provide it notice of this
proceeding.” Id. ¶ 18-20. Plaintiff therefore sought an extension of time to serve the
Commissioner.
DISCUSSION
To properly serve a federal agency a plaintiff must serve a copy of the summons
and complaint on: (1) the United States Attorney for the district where the action is
brought; (2) the United States Attorney General in Washington, D.C.; and (3) the
agency whose order the plaintiff is challenging. Fed. R. Civ. P. 4(i)(1)(A)-(C). The
version of the Federal Rules of Civil Procedure in effect at the time Plaintiff filed his
complaint gave Plaintiff 120 days from the date of filing his complaint to serve each of
these parties. Fed R. Civ. P. 4(m). 3 Although each of these parties was eventually
served, it is undisputed that neither the U.S. Attorney nor the Attorney General was
timely served. Rather, the Attorney General was served 23 days after Rule 4(m)’s
service period ended, and the Plaintiff did not serve the U.S. Attorney until shortly after
the Commissioner filed her motion to dismiss.
When a party fails to effect timely service, a court “must” extend the time for
service upon a showing of “good cause for the failure.” Fed. R. Civ. P. 4(m). Relevant
here, however, it is well settled that “attorney error does not constitute good cause
under Rule 4(m).” Counter Terrorist Grp. U.S. v. N.Y. Magazine, 374 F. App'x 233, 235
(2d Cir. 2010).
3
As of December 1, 2015, Rule 4(m) was amended to decrease the time for service to 90 days.
3
Plaintiff has not shown good cause for his failure to timely serve the Attorney
General and the U.S. Attorney. Plaintiff argues that he has established good cause
because, in attempting to effect proper service, Plaintiff’s counsel relied on information
he found on the Commissioner’s website. Specifically, Plaintiff’s counsel states that,
upon receiving a summons for the Commissioner, he “promptly served upon the
Defendant’s Office of the Regional Chief Counsel in New York City because that is the
address designated for service on the SSA’s website regarding the service of legal
documents, including appeals.” Docket No. 15 at 13. The Commissioner does not
dispute that service upon the SSA was timely. 4 See Docket No. 18 at 2. Plaintiff,
however, does not explain his failure to timely serve the Attorney General and the U.S.
Attorney.
The record shows that Plaintiff’s failure to do so resulted from a clear
misunderstanding of the manner in which the Federal Rules of Civil Procedure require
service on a federal agency—in other words, attorney error. Plaintiff has therefore not
shown “good cause” for his failure to complete service as required by Rule 4(i).
Even absent a showing of good cause, however, a district court may still exercise
its discretion to extend the time for service. See Zapata v. City of N.Y., 502 F.3d 192,
197 (2d Cir. 2007). When deciding whether to grant a discretionary extension of time,
courts in the Second Circuit consider several factors, including (1) whether the statute of
limitations would bar a refiled action; (2) whether the defendant had actual notice of the
claims asserted in the complaint; (3) whether the defendant is evading service or has
attempted to conceal the defect in service; and (4) whether the defendant would be
prejudiced by granting the plaintiff’s request. See id. at 195, 198. See also Zaffuto v.
4
The Commissioner notes that service upon her was technically improper because it was “conducted by
personal service, as opposed to registered or certified mail,” as required by Rule 4(i)(1)(C). However, the
Commissioner does not move for dismissal on this ground.
4
Peregrine Health Mgmt., 280 F.R.D. 96, 99 (W.D.N.Y. 2012). In short, the Court must
“weigh[] the impact that a dismissal or extension would have on the parties.” Zapata,
502 F.3d at 197. Doing so here, the Court concludes that the facts of this case warrant
a discretionary extension of time to complete service.
First, the Court must consider how, if at all, Plaintiff would be prejudiced if this
case were dismissed. The Commissioner acknowledges that if the Court granted her
motion, “the statute of limitations would bar re-filing in this case.” Docket No. 12-1 at 8.
But the Commissioner then attempts to downplay this, noting that this is not a case in
which Plaintiff challenges a denial of his Social Security benefits.
Rather, the
Commissioner notes, “Plaintiff brought this action simply claiming that he should be
receiving a higher monthly payment amount.” Docket No. 12-1 at 9.
The Commissioner’s argument minimizes the prejudice to Plaintiff if this case
were dismissed. Plaintiff is certainly prejudiced by receiving less in Social Security
benefits each month than he might be legally entitled to receive.
To be sure, the
prejudice to Plaintiff is not as great as it would be if the Commissioner had denied all of
Plaintiff’s benefits. But when a monthly reduction in benefits is added up over the
course of Plaintiff’s life, the prejudice becomes much more considerable. As a result,
the Commissioner’s acknowledgment that Plaintiff could not refile this case if it were
dismissed weighs strongly in favor of extending the time for service.
Second, the Commissioner admits that, despite Plaintiff’s improper service, she
had actual notice of this case for several months before filing her motion to dismiss.
Docket No. 12-1 at 9-10. Thus, the second factor weighs in Plaintiff’s favor.
5
The third factor is neutral in this case: there has been no meaningful claim that
the Commissioner tried to conceal Plaintiff’s defect in service.
To be sure, the
Commissioner did not alert Plaintiff of his failure to effect timely service. A defendant,
however, is under no legal obligation to notify the plaintiff that, in the defendant’s view,
service has been improper.
Fourth and finally, the Court must consider whether the Commissioner would be
prejudiced if Plaintiff were given an extension of time to complete service. The
Commissioner contends that, given the “sheer volume” of claims filed against the Social
Security Administration, the Commissioner depends on claimant-plaintiffs following the
rules of service. As such, the Commissioner argues that excusing Plaintiff’s failure to
follow Rule 4(i) frustrates the Commissioner’s obvious interest in operational efficiency.
Given the volume of Social Security appeals filed in this District, the Court is sensitive to
the Commissioner’s concern. But the Court must, based “on the facts of [this] case, . . .
weigh the prejudice to the defendant that arises from the necessity of defending an
action after both the original service period and the statute of limitations have passed
before service.” Zapata, 502 F.3d at 198.
Doing so here, the Court concludes that the Commissioner would be minimally
prejudiced by extending service in this case. The Court not does discount the
Commissioner’s administrative burden in processing the staggering number of Social
Security appeals filed in this District, but one improperly-served appeal from a law firm
that, in the Court’s experience, does not often (if ever) file Social Security appeals will
not cause the Commissioner’s Regional Chief Counsel’s Office to fall into disarray.
And, moreover, this is not a case in which the Commissioner’s ability to defend herself
6
decreases over time. To the contrary: the administrative record on which the Court
must decide this case is frozen in time, and this case presents only a discrete legal
issue for the Court to resolve. The Commissioner can defend herself just as well now
as she could if Plaintiff had timely effected service.
Thus, the Commissioner is
minimally prejudiced by extending the time for service.
Finally, the Commissioner’s reliance on this Court’s decision in Mused v. U.S.
Department of Agriculture, 169 F.R.D. 28 (W.D.N.Y. 1996), while understandable, is
misplaced. In Mused, the Court rejected a request to grant a discretionary extension of
time to serve a federal agency. The plaintiff in Mused argued, as Plaintiff does in this
case, that an extension of the time for service was appropriate because the agency had
actual notice of the lawsuit and would not be prejudiced by the extension of time. The
Court rejected that argument, noting that “[n]either actual notice nor absence of
prejudice to the defendant provides an adequate basis for excusing noncompliance with
Rule 4(m), unless plaintiff has diligently attempted to complete service.” 169 F.R.D. at
34 (emphasis added). The Court noted that the plaintiff in Mused “did not exercise any
diligence.”
Id.
Here, in contrast, Plaintiff’s counsel diligently attempted to correct
defects in service: he repeatedly attempted to serve the Commissioner in multiple ways,
following up when he received no response, and seeking an extension of time to correct
service. And, importantly, Plaintiff’s counsel acknowledges that his attempts at service
were “imperfect.” Docket No. 14 ¶ 20.
In short, “in light of all the circumstances here, [the Court] do[es] not believe that
the prejudice to the defendant is unfair, or substantial enough to outweigh the factors
weighing in favor of an extension, particularly in light of the general preference in this
7
circuit for deciding cases on the merits rather than on the basis of procedural missteps.”
Zaffuto, 280 F.R.D. at 100-01. Thus, after careful consideration of the facts of this case,
and because the Commissioner, the Attorney General, and the U.S. Attorney have now
all been served, the Court deems service on all three parties effective nunc pro tunc.
CONCLUSION
For the reasons stated above, the Court denies the Commissioner’s motion to
dismiss (Docket No. 12) and grants Plaintiff’s motion for an extension of time to serve
the summons and complaint (Docket No. 6). The Court deems service under Rule 4(i)
effective nunc pro tunc.
Pursuant to the Court’s Standing Order for Social Security appeals, the
Commissioner shall, within 90 days of the date of this Decision and Order, file the
certified
transcript
of
administrative
proceedings,
which
shall
constitute
the
Commissioner’s answer. Because this case appears to involve only a narrow question
of law, the Court will shorten the default briefing schedule set in the Court’s Social
Security Standing Order. After the Commissioner files the transcript of administrative
proceedings, absent any requests for an extension of time, Plaintiff shall file a motion for
judgment on the pleadings within 30 days, and the Commissioner shall respond with 30
days. Plaintiff may then reply within 14 days.
SO ORDERED.
Dated: November 23, 2016
Buffalo, New York
_s/Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
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