Opinion
No. 04 Civ. 2877 (LAK).
March 18, 2005
ORDER
The Court held on evidentiary hearing, in accordance with its prior opinion, Hakala v. J.P. Morgan Securities, Inc., No. 04 Civ. 2877 (LAK), 2005 WL 342104 (S.D.N.Y. Feb. 14, 2005), to determine whether the Pro Se Office refused to accept the complaint for filing on March 23, 2004 because it had not yet been served. At the conclusion of the hearing, defendant renewed its motion to dismiss the petition as untimely insofar as it seeks to vacate or modify the arbitration award. See id. at *5.
Plaintiff testified in substance that when he sought to file the action with the Pro Se Office on March 23, 2004, he was told that he first had to serve the complaint. The accuracy of this testimony is subject to quite substantial doubt.
First, under the Federal Rules of Civil Procedure service consists of delivery of a summons with a copy of the complaint. Fed.R.Civ.P. 4(c)(1). As the summons cannot be issued until the complaint is filed, Fed.R.Civ.P. 4(b), service cannot be made prior to the filing of the complaint. This of course is well known to the Pro Se Office, which accepts for filing prior to issuance of the summons and prior to service hundreds and perhaps thousands of pro se complaints every year.
Second, plaintiff did not identify, even by description let alone by name, the individual in the Pro Se Office to whom he attributes the statement in question. He did not call the individual as a witness.
Third, plaintiff testified, in an effort to corroborate his account to a later incident in which he allegedly advised another pro se litigant to serve his complaint before filing, accompanied the other individual to the Pro Se Office after he had done so, and then learned to his surprise that the complaint should have been filed first. But plaintiff did not identify this other individual, did not identify the Pro Se Office employee who allegedly set him straight, and did not call either as a witness. Nor did he suggest that the other individual was unavailable to testify.
Having heard the evidence, the Court finds that plaintiff has not sustained his burden of establishing that the Pro Se Office refused to accept the complaint for filing on March 23, 2004 because it had not yet been served and that there is no credible evidence that it misled plaintiff in any way. While the Court does not impute dishonesty to the plaintiff, it does bear in mind that recollections sometimes can be colored by self interest notwithstanding the utmost subjective good faith. Accordingly, defendant's renewed motion to dismiss so much of the petition as seeks to vacate or modify the arbitration award is granted on the ground that it is barred by the applicable statute of limitations.
As this order fully disposes of the last unresolved issue in this matter, the Clerk is directed to enter final judgment confirming the arbitration award in all respects.
SO ORDERED.