Robinson v. Buffalo City Police Department et al

Filing 45

DECISION AND ORDER ORDERED that the First Motion to Adjourn, First Motion to Dismiss for Lack of Jurisdiction Dismissing Plaintiffs Complaint with Prejudice, and First Motion for Judgment on the Pleadings Dismissing Plaintiffs Complaint with Prejudic e (Dkt #29) by defendants Paul Delano, Daniel Derenda, Norman G. Hartman, Ray Krug, Patrick ORourke, One Officer John Doe of the City of Buffalo Police Department, the City of Buffalo, and the City of Buffalo Police Department is granted; and it is f urther ORDERED that the Motion for Judgment on the Pleadings (Dkt #18) by the County of Erie, Erie County Sheriff Timothy Howard, and One Officer John Doe of the Erie County Sheriffs Department is granted; and it is further ORDERED that Plaintiffs Co mplaint (Dkt #1) is dismissed as to Paul Delano, Daniel Derenda, Norman G. Hartman, Ray Krug, Patrick ORourke, One Officer John Doe of the City of Buffalo Police Department, the City of Buffalo, the City of Buffalo Police Department, the County of Er ie, Erie County Sheriff Timothy Howard, and One Officer John Doe of the Erie County Sheriffs Department; and it is further ORDERED that the Clerk of Court terminates the following individuals as parties: Paul Delano, Daniel Derenda, Norman G. Hartman , Ray Krug, Patrick ORourke, One Officer John Doe of the City of Buffalo Police Department, the City of Buffalo, the City of Buffalo Police Department, the County of Erie, Erie County Sheriff Timothy Howard, and One Officer John Doe of the Erie County Sheriffs Department. Signed by Hon. Michael A. Telesca on 5/12/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ALICIA ROBINSON,
Plaintiff,
DECISION and ORDER
No. 1:16-cv-00432(MAT)

-vsTHE CITY OF BUFFALO, THE CITY OF
BUFFALO POLICE DEPARTMENT, DANIEL
DERENDA, COMMISSIONER OF THE CITY OF
BUFFALO POLICE DEPARTMENT, BUFFALO
POLICE NARCOTICS LIEUTENANT PAUL
DELANO, BUFFALO POLICE NARCOTICS
DETECTIVE PATRICK O’ROURKE, Former
BUFFALO POLICE NARCOTICS OFFICER
DETECTIVE RAY KRUG, LIEUTENANT
NORMAN G HARTMAN OF THE INTERNAL
AFFAIRS DIVISION OF THE BUFFALO
POLICE DEPARTMENT, THE CITY OF
LACKAWANNA, LIEUTENANT AARON BRENNAN
OF THE CITY OF LACKAWANNA POLICE
DEPARTMENT, THE COUNTY OF ERIE, ERIE
COUNTY SHERIFF TIMOTHY HOWARD, and
to this point at least ONE OFFICER
JOHN DOE OF THE CITY OF THE BUFFALO
POLICE DEPARTMENT, and ONE OFFICER
JOHN DOE OF THE ERIE COUNTY
SHERIFF’S DEPARTMENT,
Defendants.

INTRODUCTION
Represented

by

counsel,

Alicia

Robinson

(“Robinson”

or

“Plaintiff”) instituted this action pursuant to 42 U.S.C. § 1983
against the named defendants, alleging violations of rights under
the

United

States

Constitution

and

New

York

State

law.

In

particular, Plaintiff alleges that Lieutenant Aaron Brennan of the
City of Lackawanna Police Department illegally procured a search

warrant that was unlawfully executed by officers of the City of
Buffalo Police Department at her home on August 29, 2013. Plaintiff
further states that during the execution of the warrant, former BPD
Narcotics Officer Ray Krug (“Krug”) unjustifiably and without
provocation fatally shot one of her dogs, Sarabi, a two-year-old
female Rhodesian Ridgeback. Plaintiff asserts that the second shot
fired by Krug, which resulted in Sarabi’s death, diffused shotgun
pellets that struck Plaintiff in the left knee. Following her
arrest and transport to the Erie County Holding Center, Plaintiff
alleges that Erie County Sheriff Timothy B. Howard (“Sheriff
Howard”) and the “John Doe” City of Buffalo Police Department
officer delayed transferring her to the Erie County Medical Center
for treatment of her alleged injuries.
Presently before the Court is the Motion for Judgment on the
Pleadings

(Dkt #18)

by

defendants

the

County

of

Erie

(“Erie

County”), Sheriff Howard, and “One Officer John Doe of the Erie
County

Sheriff’s

Department”

(collectively,

“the

County

Defendants”). The County Defendants seek an order pursuant to,
inter alia, Rules 4(m) and 12(c),1 dismissing the complaint as
against the County Defendants with prejudice, due to Plaintiff’s
failure to timely effect service of legally sufficient process in
accordance with the requirements of Rules 4(a), 4(c)(l), 4(e), and
4(m) prior to the expiration of the applicable three-year statute
1

Citations to “Rules” herein refer to the Federal Rules of Civil Procedure
unless otherwise specified.

-2-

of limitations; and due to Plaintiff’s failure to demonstrate good
cause for such failure. (See Dkt ##18 through 26).
Also before the Court is the First Motion to Adjourn, First
Motion to Dismiss for Lack of Jurisdiction Dismissing Plaintiff’s
Complaint with Prejudice, and First Motion for Judgment on the
Pleadings Dismissing Plaintiff’s Complaint with Prejudice (Dkt #29)
by defendants Paul Delano, Daniel Derenda, Norman G. Hartman, Ray
Krug, Patrick O’Rourke, “One Officer John Doe of the City of
Buffalo Police Department,” The City of Buffalo (“the City of
Buffalo”),
seeking an

and

the

order

BPD

(collectively,

and Judgment

“the

pursuant

City

to Rules

Defendants”)
4(m)

and/or

12(b)(2), 12(b)(4), 12(b)(5), 12(c) and/or 12(h)(3) of the Federal
Rules of Civil Procedure, granting judgment on the pleadings
dismissing the Complaint as against the City Defendants, with
prejudice, upon the grounds of insufficient process, insufficient
service of process, and lack of personal jurisdiction because
Plaintiff failed to effectuate timely and proper service of legally
sufficient

process

upon

any

of

them

in

accordance

with

the

requirements of Rules 4(a), 4(c)(1), 4(e), and 4(m), and the
statute of limitations has expired. (See Dkt ##29-1 through 2910).2

2

The City of Lackawanna and Lieutenant Aaron Brennan of the City of
Lackawanna Police Department have not moved to dismiss the complaint; nor have
they joined in the County Defendants’ or the City Defendants’ motions seeking
dismissal of the Complaint.

-3-

Plaintiff filed a Response (Dkt #31) and a Memorandum of Law
in Opposition (Dkt ##33-1 through 33-8) to the County Defendants’
motion.
The

County

Defendants

filed

a

Reply

Memorandum

of

Law

(Dkt #42), a several Reply Affidavits (Dkt ##37 through 41). The
City Defendants filed a Reply Memorandum of Law (Dkt #43).
The motions have been fully submitted on the papers. For the
reasons discussed below, the Court grants the motions by the County
Defendants and the City Defendants and dismisses the Complaint with
prejudice.
BACKGROUND
On May 29, 2016, Plaintiff commenced this action by filing her
Complaint (Dkt #1). On May 31, 2016, the Clerk of Court of the
United States District Court for the Western District of New York
issued summonses of the same date as to all of the named defendants
(See Dkt ##2-1 through 2-12).
Also on May 31, 2016, Courtney Jakubec (“Jakubec”), then
employed

by

(“Plaintiff’s

Plaintiff’s
Attorney”

or

attorney,

Matthew

“Attorney

Albert”)

Albert,
as

his

Esq.
office

manager, delivered copies of the Complaint, unaccompanied by any
summonses, to the Erie County Department of Law, the Erie County
Sheriff’s Office, the City of Buffalo Law Department and the BPD.
Several days later, on June 2, 2016, Jakubec returned to the
Erie County Department of Law and delivered a summons addressed to
the “County of Erie.” This summons was dated May 29, 2016, prior to
-4-

the date that the Clerk of Court issued the official summonses in
this matter. Also on June 2, 2016, Jakubec returned to the Erie
County Sheriff’s Office and delivered a summons dated May 29, 2016,
and addressed to “Erie County Deputy Sheriff John Doe.” However,
Jakubec did not deliver a summons to named defendant Sheriff
Howard. Additionally, on June 2, 2016, Jakubec delivered summonses,
dated May 29, 2016, to the City of Buffalo Law Department and the
BPD.

In

addition

to

the

incongruity

regarding

the

dates

of

issuance, the summonses delivered by Jakubec on June 2, 2016,
contained

several

other

errors.

Specifically,

they

bore

the

incorrect case number (1:14-cv-00342 instead of 1:16-cv-00342), did
not list all of the parties, lacked the Clerk of Court’s signature,
and lacked the official seal of the United States District Court
for the Western District of New York.
On June 18, 2016, Plaintiff filed “Proofs of Service” signed
by Jakubec and dated May 31, 2016. (Dkt

#3 & #3-1 through #3-11).3

3

It appears that, as the County Defendants argue, Jakubec’s May 31, 2016
proofs of service contain untrue statements. For instance, in the proof of
service regarding Erie County (Dkt #3-8) Jakubec declared, under penalty of
perjury, “I left the summons at the individual’s residence or usual place of
abode with Sue on the 16h floor, a person of suitable age and discretion who
resides there, and on [blank] and mailed a copy to the individual’s last known
address.” Disregarding the fact that Erie County is not an “individual” and
Jakubec therefore used the wrong proof of service, Assistant Erie County Attorney
Kenneth Kirby, Esq. (“Attorney Kirby”) has averred that, on May 31, 2016, there
was no person named “Sue” working at the Erie County Department of Law. More
importantly, no “summons” was delivered to anyone at the Erie County Department
of Law on May 31, 2016. Rather, Erie County Department of Law employee Sandra
McCarthy avers in her supporting affidavit (Dkt #20, ¶ 3 & Ex. A) that only a
copy of the Complaint was delivered that day. Similarly, the proofs of service
as to Erie County Deputy Sheriff John Doe” (Dkt #3-10) and Sheriff Howard (Dkt
#3-9) appear to contain false statements. In them, Jakubec declared under penalty
of perjury that she delivered summonses to Erie County Sheriff’s Office on May
31, 2016. However, Sheriff Howard’s secretary, Linda Pawenski (Dkt #23, ¶ 3 & Ex.
A), avers that only a copy of the Complaint was delivered on that date.

-5-

On June 20, 2016, the City Defendants filed and served an
answer (Dkt #7), asserting defenses of insufficient service of
process, lack of personal jurisdiction, and expiration of the
statute of limitations, among other defenses.
Also on June 20, 2016, the County Defendants filed and served
a notice of appearance (Dkt #4) and their Answer (Dkt #5), setting
forth defenses of insufficient process, insufficient service of
process, lack of personal jurisdiction, and the expiration of the
statute of limitations. On July 1, 2016, the County Defendants
filed and served, as of right, their Amended Answer (Dkt #8) with
affirmative defenses.
On August 30, 2016, one day after the expiration of the 90-day
period under Rule 4(m), Plaintiff’s Attorney caused to be delivered
copies of the Court-issued summonses (Dkt ##2-9, 2-12, and 2-10,
respectively), dated May 31, 2016, addressed to “County of Erie,
95 Franklin Street, Buffalo, New York 14202;” “Erie County Deputy
Sheriff John Doe, 10 Delaware Avenue, Buffalo, New York 14202;” and
“Erie County Sheriff Timothy Howard, 10 Delaware Avenue, Buffalo,
New York 14202.” Kenneth Kirby, Esq., attorney for the County
Defendants,

rejected

service

and

returned

these

documents

to

Plaintiff’s Attorney.
RULES 12(B)(2) and (5)
I.

Rule 12(b)(2)
Rule 12(b)(2) provides that the defense of “lack of personal

jurisdiction” may be asserted on motion. FED. R. CIV. P. 12(b)(2).
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“On

a

Rule

12(b)(2)

motion

to

dismiss

for

lack

of

personal

jurisdiction, the plaintiff bears the burden of showing that the
court has jurisdiction over the defendant.” Metro. Life Ins. Co. v.
Robertson–Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) (citation
omitted); accord, e.g., In re Magnetic Audiotape Antitrust Litig.,
334 F.3d 204, 206 (2d Cir. 2003). Where, as here, no discovery has
occurred,

a

plaintiff

may

defeat

a

motion

to

dismiss

under

Rule 12(b)(2) based on “legally sufficient allegations” that the
court has jurisdiction.” Id. at 566-67 (citing Ball v. Metallurgie
Hoboken–Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.) (“Prior to
discovery, a plaintiff challenged by a jurisdiction testing motion
may defeat the motion by pleading in good faith, see FED. R. CIV. P.
11, legally sufficient allegations of jurisdiction.”) (emphasis
supplied), cert. denied, 498 U.S. 854 (1990)).
II.

Rule 12(b)(5)
“A Rule 12(b)(5) motion is the proper vehicle for challenging

the mode of delivery or the lack of delivery of the summons and
complaint.” 5B Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1353 (3d ed. 2004) (footnote with citations
omitted). “Objections pursuant to Rule 12(b)(2) concern lack of
personal jurisdiction, which results when a summons and complaint
have not been served on the defendant pursuant to Rule 12(b)(5).”
Anzulewicz v. National Fuel Gas Supply Corp., 208 F.R.D. 47, 49 n.
5 (W.D.N.Y. 2002). Once a defendant raises a challenge to the
sufficiency of service of process, the plaintiff bears the burden
-7-

of proving that service was adequate. Howard v. Klynveld Peat
Marwick Goerdeler, 977 F. Supp. 654, 658 (S.D.N.Y. 1997), aff’d,
173 F.3d 844 (2d Cir. 1999). In considering a motion to dismiss
pursuant to Rule 12(b)(5) based on insufficient process, the court
“must look to matters outside the complaint to determine whether it
has jurisdiction.” Darden v. DaimlerChrysler N.A. Holding Corp.,
191 F. Supp.2d 382, 387 (S.D.N.Y. 2002); see also 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 1364
(3d ed. 2004) (“The validity of these defenses [in Rules 12(b)(1)
to 12(b)(5)] rarely is apparent on the face of the pleading and
motions raising them generally require reference to matters outside
the pleadings on a variety of questions such as the citizenship or
residence of the parties, the activities of the defendant in the
forum state, and the details of the service of process.”).
DISCUSSION
I.

Deficiencies in Service
A. Insufficiencies in the Process Itself
The Federal Rules of Civil Procedure dictate the content that

a summons must contain. See FED. R. CIV. P. 4(a)(1)(A)–(G). Among
other things, a summons must

“name the court and the parties[,]”

id. (4)(a)(1)(A), “be signed by the clerk[,]” id. 4(a)(1)(F), and
“bear the court’s seal.” Id. 4(a)(1)(G). Here, the summonses
delivered by Plaintiff’s Attorney’s former office manager, Jakubec,
on June 2, 2016, suffered from a number of infirmities: They bore
the incorrect case number (1:14-cv-00342 instead of 1:16-cv-00342),
-8-

did not list all of the parties, lacked the Clerk of Court’s
signature, lacked the official seal of the United States District
Court for the Western District of New York, were unaccompanied by
the complaint, and were dated two days prior to the date the Clerk
of Court had issued the official summonses in this matter. For all
of these reasons, the process that Plaintiff attempted to serve on
June 2, 2016, was insufficient. See, e.g., Macaluso v. New York
State Dept. of Envtl. Conservation, 115 F.R.D. 16, 17 (E.D.N.Y.
1986) (“Obviously, the process that plaintiffs attempted to serve
on July 10 and 11 was insufficient because the summons was not
issued by the clerk, and did not bear either the clerk’s signature
or the court’s seal.”) (citing FED. R. CIV. P. 4(a), (b)). Because
Plaintiff is not pro se, it is difficult to treat the multiple
deficiencies in the summonses as mere technical errors; rather, the
Court finds that they amount to a “complete disregard[,]” Macaluso,
115 F.R.D. at 17, of Rule 4(a)’s clear requirements. See Macaluso,
115 F.R.D.

at 18 (“The Court does not view service of an unsigned,

unsealed summons not issued by the court clerk as a mere technical
defect.

Instead,

requirements
Rule

4.”).

of

it

amounts

to

a

complete

disregard

process

set

forth

clearly

and

Accordingly,

the

Court

declines

to

of

concisely
exercise

the
in
its

discretion to grant leave to amend process. Id. (citing Gianna
Enterprises v. Miss World (Jersey) Ltd., 551 F. Supp. 1348, 1358
(S.D.N.Y. 1982)).

-9-

B.

Insufficiencies in the Service of Process
1.

The Second Attempt at Service Was Untimely

The version of Rule 4(m) effective on December 1, 2015, and
the operative version for this Court’s analysis, changed the amount
of time for service to be accomplished from 120 days to 90 days.
Rule 4(m) currently provides in relevant part that
[i]f a defendant is not served within 90 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 or order that
service be made within a specified time. 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).
Here,

Plaintiff’s

complaint

was

filed

electronically

on

Sunday, May 29, 2016. Ninety (90) days from that date was Saturday,
August 27, 2016. By operation of Rule 6(a)(1)(C), Plaintiff would
have had until Monday, August 29, 2016, to effect service and still
be

within

Rule

4(m)’s

90-day

period.

However,

Plaintiff’s

Attorney’s paralegal, Jessica Morrill (“Morrill”), did not deliver
court-issued summonses to the County Defendants or City Defendants
until the day after the 90-day deadline, i.e., Tuesday, August 30,
2016. The Court therefore must consider whether Plaintiff has shown
“good cause” for the failure of timely service.
Before

proceeding,

the

Court

must

address

Plaintiff’s

Attorney’s refusal to concede that there were any defects in the
service itself or the process utilized. He argues that “[t]hough

-10-

lacking in artistry, Plaintiff did perfect service on all named
defendants . . . by virtue of putting them on notice of the pending
action, and then, pursuant to the Administrative Procedures for
Electronic Filing for the Western District, all Defendants received
proper service of their respective court issued summonses and
complaints when their attorneys, by way of local rule, accepted
service of

such

documents

by

appearing

on the

matters [sic]

electronically on June 20, 2016.” (Plaintiff’s Memorandum of Law
(“Pl’s

Mem.”)

(Dkt

#33,

p.

11

of

14;

some

initial

capitals

omitted)). Plaintiff’s argument is flawed on multiple grounds.
First, Plaintiff did not perfect service on “all Defendants” “by
virtue of putting them on notice of the pending action” through the
filing of the Complaint, followed by Jakubec’s service, on June 2,
2016, of the defective summonses. As noted above, Jakubec only
delivered a summons addressed to Deputy Sheriff John Doe; she did
not deliver a summons addressed to Sheriff Howard, and therefore
Plaintiff cannot credibly argue that Sheriff Howard was put on
notice of her lawsuit. With regard to Lieutenant Norman G. Hartmann
(“Hartmann”), the City Defendants indicate that he retired from BPD
effective December 31, 2013. (Dkt #29-9). Since

Hartmann was not

an employee of the BPD at the time Plaintiff attempted to serve
him, the BPD could not be considered his “place of business” for
purposes of service of process, and it was not authorized to accept
service of process on his behalf. See Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298 (3d Cir. 1995) (defendant corporation was
-11-

no longer authorized to conduct business in Oklahoma; therefore,
the Secretary of State of Oklahoma was no longer the authorized
agent to accept service of process).
In any event, “actual notice is no substitute for valid
service of process.” In re Crysen/Montenay Energy Co., 166 B.R.
546, 554 (S.D.N.Y. 1994) (“[T]he fact that E & C had actual
knowledge of the action is not sufficient to deny its motion to
dismiss, in that actual notice is no substitute for valid service
of process.”) (citing Omni Capital Intern., Ltd. v. Rudolf Wolff &
Co., Ltd., 484 U.S. 97, 104 (1987) (“[B]efore a court may exercise
personal jurisdiction over a defendant, there must be more than
notice

to

the

defendant

and

a

constitutionally

sufficient

relationship between the defendant and the forum.”); Martin v.
New York State Dept. of Mental Hygiene, 588 F.2d 371, 373 (2d Cir.
1978) (“A showing that the defendant has had actual notice of the
lawsuit is not sufficient to bar a motion to dismiss under Rule
12(b)(2).”).
Second, Plaintiff’s contention that she effected proper and
timely service because the City Defendants’ and County Defendants’
“attorneys,

by

way

of

local

rule,

accepted

service

of

such

documents by appearing on the matters electronically on June 20,
2016,” is controverted by the Second Circuit’s Martin case. In
Martin, the plaintiff argued that one of the defendants, Keill,
“waived [Rule 4’s] requirement [of personal service with a summons
and complaint] and “submitted to the jurisdiction of the district
-12-

court, merely because Keill allowed the Attorney General to raise
in that forum the defenses of lack of personal jurisdiction and
insufficiency of service of process.” Id. The Second Circuit
rejected this argument, noting that Rule 12(b) “was designed to
allow a moving party to challenge the court’s jurisdiction.” Id.
Here, two days after Plaintiff filed Jakubec’s Affidavits of
Service,

the

County

Defendants’

Attorney

filed

a

Notice

of

Appearance and concomitantly filed an Answer, 2016, asserting the
defenses of insufficient process, insufficient service of process,
lack

of

personal

jurisdiction,

and

untimeliness

under

the

applicable statute of limitations. Plaintiff here cannot “plausibly
contend,” Martin, 588 F.2d at 373, that the County Defendants’
Attorney “accepted” Plaintiff’s service of process on behalf of any
of his clients, given that the Answer asserted various affirmative
defenses

were

based

on

insufficient

process

and

insufficient

service of process. See id. Plaintiff raises similar arguments with
regard to the City Defendants, asserting that Robert E. Quinn, Esq.
(“Attorney

Quinn”)

everything”

(Dkt

informed

#33-1

at

Morrill

17).

that

According

he
to

“already

had

Plaintiff,

this

purported statement by Attorney Quinn equates to an admission that
the City of Buffalo was properly served. However, as did the County
Defendants, the City Defendants raised affirmative defenses based
on insufficient service and lack of person jurisdiction, and at no
time

affirmatively

waived

any

objections

service.
-13-

to

jurisdiction

and

2.

“Good Cause” Does Not Exist for the Failure to
Effect Timely Service

The Court turns now to the question of whether Plaintiff has
shown “good cause” such that the Court must extend time to serve
under Rule 4(m). Plaintiff argues that “should the Court somehow
find that the defendants [sic] did not provide timely service,”
“the sudden illness of process server Jessica Morrill constitutes
sufficient good cause as to why process was served 91 days after
the original filing of the complaint in this action.” (Pl’s Mem. at
18, Dkt #33-1 at 4 of 13; some initial capitals omitted). Plaintiff
has submitted a statement signed by Morrill which purports to be a
sworn affidavit (Dkt #33-8).
Before proceeding, the Court addresses the County Defendants’
argument that the document signed by Morrill contains several
irregularities rendering its admissibility suspect. Under New York
law, the “[j]urat” required on an affidavit is “a clause wherein an
attesting

officer

certifies,

among

other

matters,

that

the

subscriber has appeared before him and sworn to the truth of the
contents thereof.” N.Y. PENAL LAW § 210.00(7). The jurat on Morrill’s
statement states, “[s]ubscribed and [s]worn to the 11th day of
Dec. 2016”

(Dkt #33-8, p. 3 of 3), and below that appears Attorney

Albert’s notary public stamp. However, Attorney Albert did not sign
the jurat. Furthermore, the jurat simply says “subscribed and sworn
to” and does not indicate that Morrill personally appeared before
the

attesting

officer,

Plaintiff’s

-14-

Attorney.

Without

an

appropriate, signed jurat stating that Morrill personally appeared
before Plaintiff’s Attorney and, in his presence, subscribed and
swore to the truth of the statement’s contents, Morrill’s statement
is not an affidavit. See, e.g., Flatbush Chester Corp. v. D’Osoie,
20 N.Y.S.2d 875, 877 (N.Y. Mun. Ct. 1940) (“[O]ne of the essential
elements of an affidavit, the thing which in fact distinguishes it
from every other declaration, is the jurat by which the statement
is given the character of truthfulness so essential to the proper
administration of justice.

Hence, if this paper lacks a jurat it

is not an affidavit. But a jurat which lacks the signature of the
officer administering the oath is no jurat at all, because the
signature is precisely the thing that makes the jurat. It must
follow, therefore, that the paper purporting to be the affidavit of
service of the summons in this action annexed to the summons is not
an affidavit within the meaning of the statute, and the proceeding
is defective.”). Notwithstanding the multiple flaws in Morrill’s
statement, the Court has considered the substance of it and finds
that it does not assist Plaintiff in establishing “good cause.”
Here, after the County Defendants and City Defendants filed
their Answers on June 20, 2016, asserting, inter alia, the defenses
of

insufficient

process

and

insufficient

service

of

process,

Plaintiff’s Attorney waited 67 days, until Friday, August 26, 2016,
to speak with his paralegal, Morrill, about serving the courtissued summonses on the named defendants. As noted above, the 90day period for serving the summonses and complaints under Rule 4(m)
-15-

was to expire on Monday, August 29, 2016. According to Morrill, she
received the summonses from Plaintiff’s Attorney on August 26,
2016, with the understanding that she would be serving them on
August 29, 2016. However, Morrill states, on August 29, 2016, she
“had an awful flu” and “could not leave [her] house that day due to
illness.” However, she “recovered enough by Tuesday, August 30,
2016[,] so

that

[she]

could

provide all

the

above

[process]

materials to the listed Defendants.” Plaintiff’s Attorney contends
that the “sudden illness” of Morrill, his paralegal and process
server, “can independently establish good cause” under Rule 4(m).
“Good

cause

is

‘generally

found

only

in

exceptional

circumstances where the plaintiff’s failure to serve process in a
timely manner was the result of circumstances beyond its control.’”
Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc.,
187 F.R.D. 503, 505 (S.D.N.Y. 1999) (quoting National Union Fire
Ins. Co. v. Sun, No. 93 Civ. 7170(LAP), 1994 WL 463009, at *3
(S.D.N.Y. Aug. 25, 1994)). Thus, “[a]n attorney’s inadvertence,
neglect, mistake or misplaced reliance does not constitute good
cause.” Id. (quoting Howard v. Klynveld Peat Marwick Goerdeler, 977
F. Supp. 654, 658 (S.D.N.Y. 1997), aff’d, 173 F.3d 844 (2d Cir.
1999)). It follows, then, that reliance on a process server to
effect service is insufficient to merit a finding of good cause or
an

extension

of

time

for

service.

E.g., Lachaab

v.

Zimpher,

1:15-CV-426, 2016 WL 3172869, at *3 (N.D.N.Y. June 6, 2016) (citing
Micciche v.

Kemper

Nat’l

Servs.,
-16-

560 F.

Supp.2d

204,

209-10

(E.D.N.Y.

2008)

(rejecting

counsel’s

attempts

to

establish

excusable neglect due to “‘numerous problems with the process
server’” and “‘absence of the full time paralegal who was out on
maternity leave,’” which “purportedly left the office ‘severely
understaffed’ and unable to perform ‘normal follow up procedures;’”
“[c]ircumstances

such

as

these

fail

to

establish

excusable

neglect”) (citations and quotation to record omitted); Petrucelli
v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1307 (3d Cir. 1995)
(“[R]eliance upon a third party or on a process server is an
insufficient basis to constitute good cause for failure to timely
serve, and is also an insufficient basis for granting an extension
of time to effect service.”) (citation omitted)).
Likewise,

contrary

to

Plaintiff’s

Attorney’s

contention,

illness alone is not a sufficient basis for finding good cause, or
excusable neglect. See, e.g., Gesualdi v. J.H. Reid, General
Contractor, 14-CV-4212(ADS)(GRB), 2017 WL 752157, at *5 (E.D.N.Y.
Feb. 27, 2017) (in context of Rule 60(b) motion, illness does not
demonstrate “excusable neglect”; “[a]lthough the court may consider
[a] counsel’s illness, regardless of its seriousness, illness alone
is not a sufficient basis for setting aside a judgment”) (quoting
Carcello v. TJX Cos., 192 F.R.D. 61, 64 (D. Conn. 2000); alteration
in original; citations omitted); Lehr Constr. Corp. v. Flaxer,
No. 16-cv-4048, 2017 WL 464428, at *4 (S.D.N.Y. Feb. 2, 2017)
(“While courts will occasionally rely on the illness or disability
of a party or attorney when finding excusable neglect, these cases
-17-

involve extraordinary circumstances, such as a sudden, unexpected,
or catastrophic illness, or the party has pointed to specific facts
and circumstances demonstrating why the illness or disability
caused them to miss the original deadline. . . . [C]ounsel’s
disability [Parkinson’s disease] was not sudden, unexpected, or
catastrophic.”) (footnote omitted) (citing Kingvision Pay-Per-View
Ltd. v. La Aroma Del Cafe, Inc., CV-02-0786 (CPS), 2006 WL 842398,
at *1 (E.D.N.Y. Mar. 27, 2006) (finding that counsel’s demylinating
syndrome, “a condition . . . [that] causes fatigue and occasionally
severe pain and cannot be treated,” did not qualify as excusable
neglect); other citations omitted).
The important factor in the cases considering illness as
potential “excusable neglect,” overlooked by Plaintiff, is that the
illness or disability at issue must be counsel’s—not that of
someone acting on his behalf. See, e.g., Active Glass Corp. v.
Architectural and Ornamental Iron Workers Local Union 580, 899 F.
Supp. 1228, 1231 (S.D.N.Y. 1995) (“Illness of counsel has been
regarded as valid grounds for excusable neglect where ‘the illness
is so physically and mentally disabling that counsel is unable to
file the appeal and is not reasonably capable of communicating to
co-counsel his inability to file.’”) (quoting Islamic Republic of
Iran v. Boeing Co., 739 F.2d 464, 465 (9th Cir. 1984); emphasis
supplied). Here, Plaintiff’s Attorney is attempting to rely on the
illness of one of his employees, whom he had directed to effect
service of process on the named defendants. However, it remains
-18-

“‘counsel’s responsibility to monitor the activity of the process
server and to take reasonable steps to assure that a defendant is
timely served.’” McKibben v. Credit Lyonnais, 98 CIV. 3358 LAP,
1999 WL 604883, at *4 (S.D.N.Y. Aug. 10, 1999) (quoting Cox v.
Sandia Corp., 941 F.2d 1124, 1125 (10th Cir. 1991); citing Kleeman
v. Rheingold, 598 N.Y.S.2d 149, 153 (1993) (duty owed by an
attorney to his client to exercise care in the service of process
“fits squarely and neatly within the category of obligations that
the law regards as ‘nondelegable’” and therefore “New York State’s
attorneys cannot be allowed to evade responsibility for its careful
performance by the simple expedient of ‘farming out’ the task to
independent

contractors)).

That

principle

applies

here,

where

Plaintiff’s Attorney knew that the attempt at service by Jakubec,
his former process server, had been ineffectual. See Novak v.
National Broadcasting Co., 131 F.R.D. 44, 46 (S.D.N.Y. 1990) (where
“last information [the current attorneys] had on this subject was
[the prior attorney]’s August indication that attempted service on
Novello

had

failed[,]”

“[i]t

was

incumbent

on

[the

current

attorneys] to ascertain whether service had been properly made”)).
Plaintiff’s Attorney, despite knowing that the person whom he
had delegated to serve process was, at his instruction, planning to
serve the defendants on the last day of Rule 4(m)’s time-period,
did not follow up with her to make sure that the second attempt at
service was

successful.

The

Court

notes

that

Morrill

was

an

employee of Plaintiff’s Attorney’s law firm, so presumably he would
-19-

have known that she was out sick that day. That fact makes it even
more inexplicable that Plaintiff’s Attorney did not make any effort
to contact Morrill, one of his employees, to confirm that she was
able to perform the requested task, for which time was of the
essence.

Had

he

done

so,

Plaintiff’s

Attorney

would

have

ascertained that Morrill was unable to complete service, and he
could have done it himself. Rather, Plaintiff’s Attorney apparently
left performance of this time-sensitive task to the vagaries of
Plaintiff’s illness. Under these circumstances, the Court cannot
find that Plaintiff has demonstrated “good cause.” See, e.g., Klein
v. Williams, 144 F.R.D. 16, 20 (E.D.N.Y. 1992) (“At very little
effort and expense, Klein could have served the government within
the period. Once counsel had notice of a service problem, no reason
existed not to ensure that service would be made within the
remaining time. The only explanation for plaintiff’s failure is the
inadvertence of counsel.”) (internal citation omitted); see also
Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 887
(8th Cir. 1996) (“When counsel has ample notice of a defect in
service, does not attempt an obvious correction, and chooses to
defend the validity of the service attempted, there is no good
cause for the resulting delay if that method of service fails.”)
(citation omitted).

-20-

3.
The

The Court Will Not Exercise
Extend the Time for Service

Second

Circuit

has

held

that

Its

Discretion

“district

courts

to

have

discretion to grant extensions even in the absence of good cause.”
Zapata v. City of N.Y., 502 F.3d 192, 196 (2d Cir. 2007); see also
id. at 197 (“[A] district court may grant an extension in the
absence of good cause, but it is not required to do so.”) (emphasis
in original; citing Coleman v. Milwaukee Bd. of Sch. Directors, 290
F.3d 932, 934 (7th Cir. 2002) (“[T]he cases make clear that the
fact that the balance of hardships favors the plaintiff does not
require the district judge to excuse the plaintiff’s failure to
serve the complaint and summons within the 120 days provided by the
rule.

It

does

not

abolish

his

discretion.”)

(emphasis

in

original)). The Court accordingly must consider whether it should
exercise its discretion to grant an extension notwithstanding its
finding that Plaintiff failed to demonstrate “good cause” for her
deficiencies in accomplishing service. See id.
As an initial matter, the Court notes that the failure of a
party to serve within the applicable limits cannot be excused
“simply because the action will then be time-barred.” Bloomer v.
City of New York, CV 89-592 (RR), 1994 WL 92388, at *4 (E.D.N.Y.
Mar. 3, 1994) (citing Frasca v. United States, 921 F.2d 450, 453
(2d Cir. 1990)). Nonetheless, the potential preclusive effect of
the statute of limitations may be considered by the court in its
analysis. Bloomer, 1994 WL 92388, at *4 (citing Merced v. Dept. of

-21-

Corr. of the City of N.Y., No. 84 CIV. 5926(CBM), 1988 WL 83416, at
*1 (S.D.N.Y. Aug. 1, 1988)). The Court therefore has considered the
fact that while a Rule 4(m) dismissal is “without prejudice,” FED.
R. CIV. P. 4(m), such a dismissal in the present case would
effectively be with prejudice, because the three-year statute of
limitations applicable to Plaintiff’s Section 1983 claims has long
since expired.
The Court has also considered that at least the attorneys for
the County Defendants and the City Defendants, had actual notice of
the lawsuit, though not all of their clients did.4
Against those factors that weigh in Plaintiff’s favor, the
Court notes that Plaintiff’s Attorney’s first process server,
Jakubec, filed proofs of service (Dkt ##3-8, 3-9 & 3-10), affirmed
to be true under penalty of perjury, stating that on May 31, 2016,
she had served the named defendants with summonses, but she had
not; witnesses on behalf of the City of Buffalo and Erie County
have filed sworn affidavits that Jakubec only left copies of the
Complaints with them. Then, on June 2, 2016, Jakubec purported to
serve unofficial, improper summonses on some but not all of the
named defendants. During the nearly two-month time period that

4

The City Defendants note that not all of the individual defendants were
placed on notice of Plaintiff’s alleged causes of action by virtue of her notice
of claim, since that document named only the City of Buffalo and City of Buffalo
Police Department, and failed to name any of the other individual City
Defendants. Moreover, in the notice of claim, Plaintiff did not identify the
killing of her dog as a basis for constitutional claims against the City; nor did
she allege any facts regarding the BPD’s internal affairs investigation about
which she now complains.

-22-

followed, Plaintiff’s Attorney never requested an extension of time
to complete service from this Court. Since Plaintiff filed her
Complaint fairly late in three-year statute of limitations period
(only approximately 90 days remained), she “had even more reason to
seek a timely extension of the time for service of process.” Carl
v. City of Yonkers, 04 CIV. 7031(SCR), 2008 WL 5272722, at *6
(S.D.N.Y. Dec. 18, 2008), aff’d, 348 Fed. Appx. 599 (2d Cir. 2009)
(unpublished opn).5
Instead, Plaintiff’s Attorney waited until there were only
days left on the 90-day period under Rule 4(m) to delegate the
responsibility to effectuate service to his paralegal, Morrill.
According to Morrill, she was specifically instructed to perform
this task on August 29, 2016—the last day of the 90-day period
under Rule 4(m). It was not until the County Defendants moved to
dismiss the complaint that Plaintiff’s Attorney made a request, in
his

Memorandum

of

Law,

for

an

extension

of

time

to

request

service.6
5

The time during which the three-year statute of limitations was tolled by
Rule 4(m)’s period for service of process itself expired on or about November 28,
2016. “[T]he statute of limitations for the underlying claim is tolled during
[Rule 4’s service] period.” Zapata, 502 F.3d at 194 n. 4 (citing Frasca, 921
F.2d at 453). However, “if the plaintiff’s action is dismissed for a failure to
serve within [the number of] days [set forth in Rule 4(m)], ‘the governing
statute of limitations again becomes applicable, and the plaintiff must refile
prior to [its] termination . . . .’” Id. (quoting Frasca, 921 F.2d at 453 (citing
Geiger v. Allen, 850 F.2d 330, 334 (7th Cir. 1988)).
6

This request is procedurally defective insofar as Plaintiff’s Attorney
failed comply with Rule 6(c)(1) of the Federal Rules of Civil Procedure or Rule
7(a) of the Western District of New York’s Local Rules of Civil Procedure. For
instance, Plaintiff’s Attorney failed to file a written notice of motion or
cross-motion or to submit an affidavit in support of the relief he sought in the
caption of his memorandum of law.

-23-

Additional factors weighing against Plaintiff are that the
County Defendants and City Defendants were not evasive, unavailable
or unknown. Nor did they attempt to hide the defects in service.
Cf. FED. R. CIV. P. 4(m) advisory committee’s notes (“Relief may be
justified, for example, . . . if the defendant is evading service
or conceals a defect in attempted service.”). Here, for instance,
the County Defendants’ answer (Dkt #5) and amended answer (Dkt #8)
specifically

apprised

Plaintiff

of

the

following

affirmative

defenses: “Service of process was insufficient as to each of these
Answering Defendants. . . . Process was insufficient as to each of
these Answering Defendants. . . . Personal jurisdiction is lacking
as to each of these Answering Defendants.” (See Dkt #5, p. 3 of 22;
Dkt. #8, p. 3 of 23).
The Court cannot ignore Plaintiff’s Attorney’s dilatoriness
in making arrangements to accomplish service, and his delegation of
this important task to one of his subordinates, without any attempt
to follow-up and ensure that service was performed. Faced with
possible dismissal of the Complaint, Plaintiff’s Attorney attempts
to obscure his lack of diligence behind his paralegal’s alleged
“sudden illness.” As discussed above, however, it is well-settled
that the duty owed by an attorney to his client to exercise care in
the service

of

process

“fits

squarely

and

neatly

within

the

category of obligations that the law regards as ‘nondelegable[.]’”

-24-

Kleeman,

598

N.Y.S.2d

at

153.7

Furthermore,

the

Court

has

considered Plaintiff’s Attorney’s intractable position, in the face
of a mountain of evidence to the contrary, that service was
properly accomplished, and his presentation of a frankly specious
argument that Rule 2(t)(l) of the Western District Administrative
Procedures

Guide

for

Electronic

Filing

establishes

that

the

defendants consented to service of process by electronic means. As
the County Defendants’ Attorney explained in his Reply (Dkt #37,
¶¶ 25-34), this argument “would elevate the Western District of
New York Administrative Procedures for Electronic Filing above the
Federal Rules of Civil Procedure . . . and vitiate virtually all of
Rule

4

of

the

Rules

of

Civil

Procedure,

or,

at

a

minimum,

Rules 4(e-j) thereof, which prescribe particular means of serving
process. . . .” (Dkt #37, ¶30).
In the context of motions for vacatur, litigants typically
seek “relief from counsel’s error” under Rule 60(b)(1) on the
“theory

that

such

error

constitutes

mistake,

inadvertence

or

excusable neglect.”.

7

New York’s Rules of Professional Conduct for attorneys provides that “a
lawyer shall . . . withdraw from the representation of a client when (2) the
lawyer’s physical or mental condition materially impairs the lawyer’s ability to
represent the client. . . .” NY ST RPC, Rule 1.16(b)(2). The Rules “make it clear
that if an illness interferes or potentially interferes with counsel’s
competence, diligence, and effective representation of a client, the prudent and
professionally responsible attorney must make alternative arrangements for his
clients[.]” Carcello v. TJX Companies, Inc., 192 F.R.D. 61, 65 (D. Conn. 2000)
(emphasis supplied). It makes no sense for a lesser standard to apply when the
illness is not counsel’s, but that of one of his employees.

-25-

The Court is “acutely aware,” Harper v. City of N.Y.,
No. 09-CV-05571 JG SMG, 2010 WL 4788016, at *10 (E.D.N.Y. Nov. 17,
2010), aff’d, 424 F. App’x 36 (2d Cir. 2011), that behind counsel
stands a plaintiff who has alleged violations of her constitutional
rights. If the claims against the City Defendants and County
Defendants

are

dismissed

with

prejudice

due

to

Plaintiff’s

Attorney’s omissions, Plaintiff will lose her chance to pursue
those claim. Nonetheless, the Court cannot overlook Plaintiff’s
Attorney’s “continuous disregard of the procedures that govern this
action,” id., which “reflects a troubling pattern of carelessness
by counsel.” Id. Under the circumstances discussed above, the Court
sees “no justification” for extending the time to serve the City
Defendants and the County Defendants. See id. It is a settled
albeit unforgiving principle that “a person who selects counsel
cannot

thereafter

avoid

the

consequences

of

that

counsel’s

negligence.” Andree v. Ctr. for Alt. Senten. and Empl. Services,
Inc., 92 CIV. 616(TPG), 1993 WL 362394, at *2–3 (S.D.N.Y. Sept. 14,
1993) (citing Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir. 1986)
(noting that it has “consistently declined to relieve a client
under subsection (1) of the ‘burdens of a final judgment entered
against him due to the mistake or omission of his attorney by
reason of the latter’s ignorance of the law or other rules of the
court, or his inability to efficiently manage his caseload’”)
(quoting United States v. Cirami, 535 F.2d 736, 739 (2d Cir.
1976)).
-26-

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the First Motion to Adjourn, First Motion to
Dismiss for Lack of Jurisdiction Dismissing Plaintiff’s Complaint
with Prejudice, and First Motion for Judgment on the Pleadings
Dismissing

Plaintiff’s

Complaint

with

Prejudice

(Dkt

#29)

by

defendants Paul Delano, Daniel Derenda, Norman G. Hartman, Ray
Krug, Patrick O’Rourke, One Officer John Doe of the City of Buffalo
Police Department, the City of Buffalo, and the City of Buffalo
Police Department is granted; and it is further
ORDERED

that

the

Motion

for

Judgment

on

the

Pleadings

(Dkt #18) by the County of Erie, Erie County Sheriff Timothy
Howard, and One Officer John Doe of the Erie County Sheriff’s
Department is granted; and it is further
ORDERED that Plaintiff’s Complaint (Dkt #1) is dismissed as to
Paul Delano, Daniel Derenda, Norman G. Hartman, Ray Krug, Patrick
O’Rourke, One Officer John Doe of the City of Buffalo Police
Department,

the

City

of

Buffalo,

the City

of

Buffalo

Police

Department, the County of Erie, Erie County Sheriff Timothy Howard,
and One Officer John Doe of the Erie County Sheriff’s Department;
and it is further
ORDERED that the Clerk of Court terminates the following
individuals as parties: Paul Delano, Daniel Derenda, Norman G.
Hartman, Ray Krug, Patrick O’Rourke, One Officer John Doe of the

-27-

City of Buffalo Police Department, the City of Buffalo, the City of
Buffalo Police Department, the County of Erie, Erie County Sheriff
Timothy Howard, and One Officer John Doe of the Erie County
Sheriff’s Department.8
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 12, 2017
Rochester, New York.

8

The only defendants that remain are the City of Lackawanna and Lieutenant
Aaron Brennan of the City of Lackawanna Police Department. As noted above, see
n. 2, they have not moved to dismiss the complaint; nor have they joined in the
County Defendants’ or the City Defendants’ motions seeking dismissal of the
Complaint.

-28-