Opinion
1:19-cv-10004 (JPO) (SDA)
01-20-2021
Jeriel Alexander, Plaintiff, v. Private Protective Services, Inc., Defendant.
ORDER OF SERVICE STEWART D. AARON, United States Magistrate Judge :
Pursuant to 28 U.S.C. § 1915, the Court has made diligent efforts to serve process on Defendant on behalf of Plaintiff, who is proceeding in this action without prepayment of fees, that is, in forma pauperis. (See ECF Nos. 4, 15.) Those efforts have proven unsuccessful.
On December 3, 2019, the Court directed the U.S. Marshals Service to effect service on Defendant; however, that service attempt failed due to an "insufficient address." (See Order of Service, ECF No. 8; Marshal's Process Receipt and Return, ECF No. 10.) On March 11, 2020, the Court directed the Marshals Service to effect service on Defendant at an updated service address; however, that attempt at service also failed, and building security at the service address informed the server that Defendant had moved out in November 2019. (See Am. Order of Service, ECF No. 16; Marshal's Process Receipt and Return, ECF No. 17.) On November 2, 2020, the Court again directed the Marshals Service to effect service on Defendant at an updated address; that attempt failed as well. (See Order of Service, ECF No. 19; Marshal's Process Receipt and Return, ECF No. 20 ("[U]nable to serve as addressed.").) On December 16, 2020, the Court directed the Marshals Service to effect service on Defendant via Defendant's CEO (at a different address); that attempt failed when that officer "could not be located at the address provided." (See Order of Service, ECF No. 21; Marshal's Process Receipt and Return, ECF No. 23.)
Because Defendant is a corporation, Plaintiff has the option of effecting service on Defendant via personal service on the New York Secretary of State, as statutory agent for service of process on a business corporation. See Fed. R. Civ. P. 4(h)(1)(a); N.Y. C.P.L.R. 311; N.Y. Bus. Corp. Law § 306. Such service entails a $40.00 statutory fee, which the Court may not pay on Plaintiff's behalf, notwithstanding Plaintiff's in forma pauperis status. See Malik v. Lavalley, 994 F.2d 90, 90 (2d Cir. 1993); Fisch v. Republic of Poland, No. 07-cv-07204 (LAP) (KNF), 2007 WL 3120274, at *2 (S.D.N.Y. Oct. 23, 2007).
Accordingly, if Plaintiff wishes to pursue this case, he shall, no later than February 20, 2021, mail (i) a check in the amount of $40.00, made payable to "Department of State," along with (ii) a copy of this Order, to the U.S. Marshals Service for the Southern District of New York (the "Marshals Service") at the following address:
U.S. Marshals Service
Southern District of New York
Attn: Civil Section
500 Pearl Street, Suite 400
New York, NY 10007
If the Marshals Service receives the check and a copy of this Order from Plaintiff, the Marshals Service promptly shall so advise the Court so that the Court may enter an appropriate Order regarding effectuation of service of process on the New York Secretary of State.
If Plaintiff fails to forward the required check and copy of this Order to the Marshals Service within the time set forth in this Order, I shall recommend to Judge Oetken that this case be dismissed for failure to prosecute.
The Clerk of Court shall mail a copy of this Order to Plaintiff. My Chambers will forward a copy of this Order to the Marshals Service.
SO ORDERED.
DATED: New York, New York
January 20, 2021
/s/_________
STEWART D. AARON
United States Magistrate Judge