Becker v. City of Buffalo Law Department et al

Filing 13

DECISION & ORDER denying 3 Motion to Dismiss; denying as moot 12 Motion to Expedite. The defendants shall answer the complaint within 14 days of the date of this decision and order. See Fed. R. Civ. P. 12(a)(4)(A). The Clerk of Court s hall correct the docket sheet to list "City of Buffalo" as a defendant instead of "City of Buffalo Law Department." SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 3/10/2025. (RFI)This was mailed to: Kevin J. Becker.Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KEVIN J. BECKER,
Plaintiff,
v.

23-CV-1209-LJV
DECISION & ORDER

CITY OF BUFFALO, et al., 1
Defendants.

Before the Court is the defendants’ motion to dismiss for lack of personal
jurisdiction due to insufficient service of process. Docket Item 3. Following the motion,
the pro se plaintiff, Kevin Becker, successfully served the defendants—albeit outside
the 90-day period for timely service. 2 See Docket Item 8. The defendants then replied,
Docket Item 10, and Becker filed a sur-reply, Docket Item 11. For the reasons that
follow, this Court denies the defendants’ motion. 3

1 Although the face of the complaint lists “City of Buffalo Law Department” as the

first defendant, see Docket Item 1 at 1, the civil cover sheet, affidavit of service, and the
parties’ briefing refer to the first defendant as “City of Buffalo,” see Docket Item 1 at 10;
Docket Item 3 at 1; Docket Item 7 at 1; Docket Item 8 at 1; Docket Item 9 at 1; Docket
Item 10 at 1. This Court, like the parties, construes the complaint as being against the
City of Buffalo. The Clerk of Court shall correct the docket sheet to list “City of Buffalo”
as a defendant instead of “City of Buffalo Law Department.”
2 As noted, the defendants initially moved to dismiss based on both insufficient

process and service of process. Docket Item 3. But because it is undisputed that the
defendants have now been served with process, see Docket Item 10 at 1, only the
timeliness of the service of process remains at issue.
3 Becker subsequently filed a motion to expedite this Court’s decision on the

defendants’ motion to dismiss. Docket Item 12. The motion to expedite is denied as
moot.

DISCUSSION
Federal Rule of Civil Procedure 4(m) provides that:
If 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.
Here, “[i]t is undisputed that the defendants were served with process 113 days after the
complaint was filed, 23 days past the 90-day deadline of [Rule] 4(m).” See Docket Item
10 at 1 (citation omitted). 4 According to Becker, this delay was caused by his process
server’s confusion about whether the deadline for service was 90 or 120 days and by
the server’s failure to “respond[] in a timely manner.” See Docket Item 9 at ¶¶ 6-7. The
defendants counter that Becker has not demonstrated good cause; they say that
although Becker “attempts to explain the late service by placing blame on the process
server, . . . there is no affidavit from the process server or any other evidence to support
the reason Becker proffers for the failure.” Docket Item 10 at 1.
But this Court need not decide whether Becker has established good cause for
his failure to effect service because the Court has the “discretion to grant extensions
even in the absence of good cause.” See Zapata v. City of New York, 502 F.3d 192,
196 (2d Cir. 2007). And even if Becker has not shown good cause, the circumstances
here warrant the exercise of that discretion. Cf. Klein v. Dep’t of Veterans Affs., 2019
WL 1284270, at *3 (W.D.N.Y. Mar. 20, 2019) (declining to “reach the issue of whether
[the plaintiff had] demonstrate[d] good cause for the failure to effectuate service

4 Page numbers in docket citations refer to ECF pagination.

2

because . . . even in the absence of good cause, [the court would] use its discretion to
extend the time allowed”). 5
“When determining whether to give a discretionary extension,” courts in this
circuit generally weigh four factors:
(1) whether any applicable statutes of limitations would bar the action once
re-filed; (2) whether the defendant had actual notice of the claims asserted
in the complaint; (3) whether [the] defendant attempted to conceal the
defect in service; and (4) whether [the] defendant would be prejudiced by
extending [the] plaintiff’s time for service.
See id. at *2 (quoting DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 66 (S.D.N.Y.
2010)). Those factors weigh heavily in Becker’s favor.
First, Becker’s statute of limitations—90 days from the notice of his right to sue
letter from the U.S. Equal Employment Opportunity Commission (“EEOC”)—expired on
November 21, 2023. See Docket Item 1 at 8 (notice of right to sue letter dated August
23, 2023); see also Hertzner v. U.S. Postal Serv., 2007 WL 869585, at *7 (E.D.N.Y.
Mar. 20, 2007) (finding that the statute of limitations factor weighed in favor of plaintiff
when more than 90 days had passed since EEOC’s notice of right to sue letter).
Second, there is no indication that the defendants would be unduly prejudiced by an
extension; indeed, their reply memorandum is focused on Becker’s failure to show good
cause and does not refer to any prejudice that allowing an extension would cause them.
See Docket Item 10 at 1-4; Klein, 2019 WL 1284270, at *3. So both of those factors
strongly favor Becker.
5 Although this Court does not reach the issue of whether Becker has shown

“good cause,” it observes that because Becker proceeds pro se, it must “construe [his]
submissions . . . liberally ‘to raise the strongest arguments they suggest.’” Corley v.
Vance, 365 F. Supp. 3d 407, 432 (S.D.N.Y. 2019) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).

3

Third, it is not clear from the record whether the defendants had actual notice of
Becker’s claims prior to the expiration of the service period, 6 so that factor is neutral.
Finally, there is no suggestion that the defendants attempted to conceal a service
defect. But even assuming that factor weighs against Becker, see Hertzner, 2007 WL
869585, at *7, it would not come close to outweighing the two factors in his favor.
For all those reasons, this Court exercises its discretion to extend Becker’s
deadline for service nunc pro tunc. The defendants’ motion to dismiss is therefore
denied.
CONCLUSION
For the reasons explained above, the defendants’ motion to dismiss, Docket Item
3, is DENIED. Becker’s motion to expedite, Docket Item 12, is DENIED AS MOOT.
The defendants shall answer the complaint within 14 days of the date of this decision
and order. See Fed. R. Civ. P. 12(a)(4)(A).
SO ORDERED.
Dated: March 10, 2025
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

6 The defendants say that they were not served until March 13, 2024, but they

say nothing about whether they knew about the claims before that. See Docket Item 3
at 2.

4