Gibson v. Smith

Filing 15

DECISION AND ORDER denying 14 Plaintiff's Motion to extend the time for service of the complaint and to compel the Monroe County Department of Human Services to provide an address for Defendant (Docket No. 14) is denied. Plaintiffs complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). The Clerk of the Court is directed to close the case. Signed by Hon. Michael A. Telesca on 3/19/18. A copy of this Decision and Order was sent by first class mail to Plaintiff.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RAMON CHARLES GIBSON,
Plaintiff,
-v-

6:17-cv-6449 (MAT)
DECISION AND ORDER

BEVERLY CASIOPIA SMITH,
Defendant.

DISCUSSION
Pro se plaintiff Ramon Charles Gibson (“Plaintiff”)
commenced the instant action on July 10, 2017, alleging
that

defendant

Beverly

Casiopia

Smith

(“Defendant”)

knowingly and fraudulently misled him into believing he
was the father of her minor child, who was born in 2003,
and thereby wrongfully caused him to pay child support,
as well as incurring other related expenses.

Plaintiff

concurrently filed a motion for leave to proceed in forma
pauperis (Docket No. 2), which the Court denied on August
9, 2017 (Docket No. 3).

Plaintiff thereafter paid the

filing fee on September 1, 2017.
On

November

6,

2017,

Plaintiff

filed

a

motion

requesting permission to serve Defendant by publication.
Docket No. 7.

Plaintiff indicated in his motion that due

to

Defendant’s

“instability

concerning

her

living

arrangements,” he had been unable to effectuate service.
Id. at 5.

On November 22, 2017, the Court issued a

Decision and Order denying Plaintiff’s request to serve
Defendant by publication.

Docket No. 9.

The Court

explained that, in order for service by publication to be
permissible, the Court would have to conclude both that
service was otherwise impossible and that Defendant was
likely to read the newspaper in which the notice was
published.

Id. at 5.

The Court further explained that

Plaintiff had not identified any affirmative steps he had
taken to discover Defendant’s address “such as inquiring
at

the

United

States

Postal

Service

or

searching

computerized databases,” and that he had not “proposed a
newspaper in which service by publication could be made,
such that the Court could assess the likelihood that
defendant would read that newspaper.”
Court

denied

Plaintiff’s

motion

Id. at 5-6.

without

The

prejudice,

stating that “[i]f plaintiff still wishes to seek service
by publication, plaintiff may submit to the Court a
motion with additional information regarding the issues

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identified above.” Id. at 6.

The Court sua sponte

extended Plaintiff’s time to serve Defendant to January
9, 2018.

Id. at 7-8.

Plaintiff did not file an additional motion for
service by publication.

However, on December 11, 2017,

he filed a motion for an extension of time for service,
asking that the Court extend the deadline for service to
March 8, 2018.

Docket No. 10.

motion on December 27, 2017.
Plaintiff

has

now

Docket No. 12.

filed

extension of time for service.

The Court granted this

another

motion

Docket No. 14.

for

an

Plaintiff

further asks this Court to “compel[] the [Monroe County]
Department of Human Services to provide a current address
for the defendant.” Id. at 1.
To the extent that Plaintiff asks this Court to
determine Defendant’s current address, Plaintiff is not
entitled to such relief.

“It is the responsibility of

the plaintiff . . . to provide a current address at which
service may be effected on each defendant.”

Lewis v.

Maldonado, No. 3:14-CV-437 MPS, 2015 WL 2016174, at *1
(D. Conn. May 1, 2015); see also Hunter v. Hill, No.

-3-

04CV920SC, 2009 WL 483154, at *2 (W.D.N.Y. Feb. 25, 2009)
(“[I]t is not the responsibility of the [Court] . . . to
provide plaintiffs with the names and addresses of the
defendants which they sue.”).

This Court has thousands

of cases pending before it, and simply does not have the
resources

to

track

down

parties’

addresses

for

the

benefit of the other parties.
The Court also finds that a further extension of
Plaintiff’s time to serve Defendant is not appropriate.
The Court is cognizant that Plaintiff is proceeding pro
se

and

has

attempted

to

accommodate

Plaintiff’s

representation that he is unable to locate Defendant.

In

its November 22, 2017 Decision and Order (Docket No. 9),
the Court identified various ways in which Plaintiff
could attempt to ascertain Defendant’s address, including
by searching computerized databases and by inquiring at
the United States Postal Service.

The Court further

explained what information it would need from Plaintiff
to order service by publication.

The Court has also

granted Plaintiff multiple extensions of his time to
serve.

However, even where there is “good cause” for a

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plaintiff’s inability to locate a defendant, the Court
cannot extend the time for service indefinitely so as to
“render[ ] [Federal] Rule [of Civil Procedure] 4(m) a
toothless tiger.”

Jordan v. Soyer, No. 97 CIV. 5345

(JSR), 1998 WL 460207, at *1 (S.D.N.Y. July 28, 1998)
(internal quotation omitted).
Plaintiff has been given eight months to effectuate
service

on

Defendant.

Moreover,

Plaintiff’s

latest

filing does not indicate that he followed through on the
methods identified by the Court in its November 22, 2017
Decision and Order in attempting to locate an address for
Defendant.

Plaintiff

also

did

not

file

a

renewed,

properly supported motion for service by publication,
despite the fact that the Court clearly informed him of
what information would need to be included in such a
motion.

Under these circumstances, the Court finds that

the interests of justice would not be served by granting
Plaintiff’s pending motion for another extension of time.
See Jordan, 1998 WL 460207 at *1 (although the Court was
“mindful

that

incarcerated

pro

se

litigants

such

as

plaintiff face significant obstacles and must be given

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every consideration,” dismissal was appropriate under
Federal Rule of Civil Procedure 4(m) because “plaintiff’s
time

to

serve

has

already

been

extended

on

several

occasions for more than an appropriate period”) (internal
quotation omitted); see also Terry v. Vill. of Ossining,
No. 12 CIV. 5855 ER, 2013 WL 5952834, at *3 (S.D.N.Y.
Nov. 5, 2013) (“Where a pro se plaintiff has failed to
effectuate timely service, courts have typically held
that

dismissal

without

prejudice

is

appropriate.”).

Accordingly, Plaintiff’s request for additional time to
effectuate

service

is

denied.

Moreover,

because

Plaintiff has failed to timely serve Defendant, the Court
finds that dismissal without prejudice is warranted under
Federal Rule of Civil Procedure 4(m).
CONCLUSION
For the reasons set forth above, Plaintiff’s motion
to extend the time for service of the complaint and to
compel the Monroe County Department of Human Services to
provide an address for Defendant (Docket No. 14) is
denied.

Plaintiff’s

complaint

is

dismissed

without

prejudice pursuant to Federal Rule of Civil Procedure

-6-

4(m).

The Clerk of the Court is directed to close the

case.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

March 19, 2017
Rochester, New York

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