Opinion
24-CV-0079 (GHW) (RFT)
05-07-2024
PETRA CHRISTINA BETER, Plaintiff, v. DUANE BAUGHMAN, et al., Defendants.
TO THE HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
ROBYN F. TANOFSKY UNITED STATES MAGISTRATE JUDGE
Plaintiff began this action on November 20, 2023, by filing a summons and complaint in in New York Supreme Court, New York County, against Defendants Duane Baughman (“Baughman”), Edward Skyler (“Skyler”), and Douglas Schoen (“Schoen”), alleging, among other claims, intentional infliction of emotional distress, assault and battery, discrimination, and violation of the Gender Motivated Violence Protection Act and the Adult Survivors Act (“ASA”), as revived by the ASA. (See ECF 1-1, Compl.) The claims arise out of an alleged sexual assault of Plaintiff by Baughman in September of 2001. The case was removed to this Court on January 5, 2024. (See ECF 1, Notice of Removal.)
I issued an Order notifying Plaintiff that it was my intention to recommend that Your Honor dismiss the claims against Skyler for failure to timely serve him; and affording Plaintiff the opportunity to move for a nunc pro tunc extension of time to serve Skyler. (See ECF 25.) On April 12, 2024, Plaintiff moved for an extension of time to serve Skyler. (See ECF 30.) Skyler opposed the motion. (See ECF 38.) Plaintiff filed a reply in further support of her motion. (See ECF 39.) I held a status conference on April 19, 2024 and provided counsel for Plaintiff and for Skyler the opportunity for oral argument on the issue. Having carefully reviewed the submissions by the parties and considered their arguments, for the reasons set forth below, I respectfully recommend that the motion for a nunc pro tunc extension of Plaintiff's time to serve Skyler be DENIED and that the claims against Skyler be DISMISSED for failure to timely serve him.
BACKGROUND
On November 29, 2023, Plaintiff's process server attempted to serve Skyler at his primary residence, located at 88 Lexington Avenue, Apt. 706, New York, NY 10016. (See ECF 12-2, Mot. To Remand Ex. B, Aff. of Service for Edward Skyler.) The affidavit of service notes that the process server spoke to the doorman who “refused name” and “refused to allow” the process server up to Skyler's apartment. (Id.) The affidavit of service also states that the unnamed doorman “called tenant/recipient [Mr. Skyler] and was advised to accept the documents.” (Id.)
Upon receiving the affidavit of service from the process server, Plaintiff's counsel on January 3, 2024 mailed copies of the summons, complaint, and notice of electronic filing to Skyler via certified mail; the documents were delivered and signed for on January 10, 2024. (See ECF 123, Mot. to Remand Ex. C, Aff. of Mailing to Edward Skyler.) Proof of service was filed on January 2, 2024. (See ECF 12-4, Mot. To Remand Ex. D, Timestamped Aff. of Service for Edward Skyler.) Plaintiff obtained an amended affidavit from the process server, who clarified that “doorman confirmed Edward Skyler resides here.” (ECF 12-7, Mot. To Remand Ex. G, Amended Aff. of Service for Edward Skyler.)
In my March 13, 2024 Report and Recommendation concerning Plaintiff's motion to remand this case to state court, to which Plaintiff did not object and which was adopted by Your Honor, I observed that: “Service that is left with a doorman, followed by a mailing, is valid where access to the building is prohibited”; “[t]he affidavit of service for Skyler states that on November 29, 2023, the doorman ‘refused to allow' the process server up to Skyler's apartment, and that the doorman ‘called tenant/recipient [Mr. Skyler] and was advised to accept the documents'”; and [u]nder these circumstances, Plaintiff successfully took the first step toward serving Skyler.” (ECF 22.) But I also concluded that Plaintiff had failed to complete substitute service on Skyler by sending him a copy of the summons and complaint within the timeframe set by CPLR § 308(2), meaning that Skyler had not been served at the time of removal. (See id.)
As of March 13, Plaintiff could still have effected service on Skyler within the timeframe prescribed by Rule 4(m): she had until April 4, 2024, which was 90 days after removal, to effect service, see Kogan v. Facebook, Inc., 334 F.R.D. 393, 403-04 (S.D.N.Y. 2020). Plaintiff could have either re-performed substitute service on Skyler through his doorman and then timely sent the summons and complaint to Skyler's home address, or she could have moved for a nunc pro tunc extension of time for mailing the summons and complaint to Skyler in connection with the original substitute service (she had already performed that mailing, albeit outside the timeframe set out by the CPLR). Instead, she did nothing until after my Order notified her of my intention to recommend that Your Honor dismiss the claims against Skyler for failure to timely serve him. (See ECF 25.)
That Order, issued on March 29, 2024, incorrectly stated that the time for service on Skyler under Rule 4(m) had expired, when in fact Plaintiff had until April 4, 2024 to effect service on him.
STANDARD FOR GRANTING AN EXTENSION OF TIME TO SERVE
A court must extend a plaintiff's time for service upon a showing of good cause, and it may extend the deadline when it concludes that a discretionary extension is appropriate. See Fed.R.Civ.P. 4(m); Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999).
In considering whether a plaintiff has shown good cause, courts weigh “the plaintiff's reasonable efforts to effect service and the prejudice to the defendant from the delay.” AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000). “To establish good cause, a plaintiff must demonstrate that despite diligent attempts, service could not be made due to exceptional circumstances beyond his or her control.” Fantozzi v. City of New York, 343 F.R.D. 19, 26, 30 (S.D.N.Y. 2022), aff'd, No. 23-1111, 2024 WL 1597745 (2d Cir. Apr. 12, 2024); see also Kogan, 334 F.R.D. at 401 (“Good cause to excuse a failure to effect service exists only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control.”). The party advocating for good cause “bears a heavy burden of proof” requiring more than “some unanticipated difficulty.” Kogan, 334 F.R.D. at 401 (S.D.N.Y. 2020). “An attorney's inadvertence, neglect, or mistake is not good cause.” Id.
Even in the absence of good cause, a court has discretion to extend the time for service of the complaint. In determining whether to exercise that discretion, courts analyze: “(1) whether the applicable statute of limitations would bar [a] refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiff's request for relief from the provision.” Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 506 (S.D.N.Y. 1999). However, “‘even if the balance of hardships favors the plaintiff a district court may still decline to excuse a failure to timely serve the summons and complaint where the plaintiff fails to advance some colorable excuse for neglect.'” Kogan, 334 F.R.D. at 404 (quoting Vaher v. Town of Orangetown, 916 F.Supp.2d 404, 421 (S.D.N.Y. 2013)).
ANALYSIS
II. Plaintiff Fails To Show Good Cause Requiring an Extension
Plaintiff points to no exceptional circumstances beyond her control. In her motion to remand, she advanced two bases for concluding that she had served Skyler before Baughman removed the case to this Court. She suggested that leaving the summons and complaint with the doorman was effective personal service. She also suggested that she had believed Skyler had been properly served through substitute service and, when she realized the process server had not timely mailed the summons and complaint after leaving those documents with the doorman, she immediately attempted to cure the defect by mailing the summons and complaint to Skyler. (See ECF 12, Mot. To Remand at 7-8.) She now appears to focus on substitute service only, arguing that her late mailing of the summons and complaint, done as soon as counsel realized that the documents had not been mailed after leaving them with the doorman, constituted “reasonable diligence.” (See ECF 30, Letter-Motion at 1.)
Under either theory, “a mistaken belief that service was proper does not constitute ‘good cause' under Rule 4(m).” Obot v. Citibank South Dakota, N.A., No. 04-CV-784A, 2006 WL 6905256, at *2 (W.D.N.Y. Oct. 17, 2006), aff'd, 347 Fed.Appx. 658 (2d Cir. 2009); see also Moss v. Ciferri, No. 21-CV-3572 (JS)(SIL), 2023 WL 2771637, at *8 (E.D.N.Y. Mar. 31, 2023). Plaintiff's counsel was incorrect that service on the doorman was personal service and he was incorrect that late mailing of the summons and complaint could complete effective substitute service. “An attorney's inadvertence, neglect, or mistake is not good cause.” Kogan, 334 F.R.D. at 401 (S.D.N.Y. 2020). More significantly, Plaintiff provides no explanation whatsoever - no argument about good cause - for her failure to try to effect service after my March 13, 2024 Report and Recommendation on remand. I therefore conclude that Plaintiff has not demonstrated good cause for her failure to timely serve Skyler.
II. Plaintiff Has Not Shown that the Court Should Exercise Discretion To Extend Her Time To Serve Skyler
Two equitable factors here provide some support for an exercise of discretion: the applicable statute of limitations would prevent Plaintiff from refiling against Skyler; and Skyler had actual notice of the claims. With regard to the fact that declining to grant an extension will effectively extinguish Plaintiff's claims against Skyler, this:
The ASA revived certain otherwise time-barred claims brought by survivors of sexual assault for a period of time that ended on November 24, 2023.
consequence “does not always warrant a discretionary exception.” Harmon v. Bogart, 788 Fed.Appx. 808, 810 (2d Cir. 2019); see also, e.g., Brunson-Bedi v. New York, No. 15 Civ. 9790 (NSR), 2018 WL 2084171, at *9 (S.D.N.Y. May 1, 2018) (“The statute of limitations on all of Plaintiff's claims have run . . . . This factor weights in Plaintiff's favor, but is not dispositive.”); E. Refractories Co., 187 F.R.D. at 506 (“The fact that plaintiff's claims may be time-barred does not require us to exercise our discretion in favor of plaintiff.”); Knorr v. Coughlin, 159 F.R.D. 5, 7 (N.D.N.Y. 1994) (“[T]he fact that dismissal will impact the statute of limitations does not compel the court to excuse the violation.”).Kogan, 334 F.R.D. at 404.
“[C]ourts weighing this consideration have focused on whether the plaintiff had been aware of the deadline and the extent of the plaintiff's efforts to meet it.” Id. Here, given the publicity surrounding the ASA and Plaintiff's filing in state court days before the expiration of its filing period, it seems clear that Plaintiff was well aware of her deadlines. And while Plaintiff's failure to serve Skyler before the case was removed to this Court appears to be the result at least in part of ministerial error by a process server, Plaintiff provides no explanation for her failure to make any efforts to effect service after I issued my Report and Recommendation on remand, which pointed out that service had not yet been effected. Under the circumstances, I think this factor warrants only limited weight in favor of extending the time for service.
Skyler's knowledge of the lawsuit, while potentially a factor favoring extending Plaintiff's time to serve, similarly provides only limited support. “A defendant's notice of a lawsuit does not excuse a plaintiff's failure to serve.” Kogan, 334 F.R.D. at 406 (citing Sartor v. Toussaint, 70 Fed.Appx. 11, 13 (2d Cir. 2002)). In evaluating equitable factors that favor granting an extension of time to serve a defendant who had actual knowledge of a lawsuit, courts consider, among other factors, whether the plaintiff had “a justifiable excuse for failing to effect service.” Kogan, 334 F.R.D. at 406 (citing cases). Plaintiff here has no such excuse, particularly after March 13, 2024.
Two equitable factors - that Skyler made no effort to conceal the defect in service and the prejudice to him if an extension of time were granted - counsel against an exercise of discretion. The prejudice to Skyler is particularly significant:
Although plaintiffs may suffer prejudice when a dismissal without prejudice timebars an action, in these circumstances, excusing [the plaintiff's] service lapse would also visit prejudice on defendants, insofar as it would force them to defend against claims that, as a matter of law, are otherwise no longer viable. See Zapata v. City of New York, 502 F.3d 192, 198-99 (2d Cir. 2007) (affirming Rule 4(m) dismissal where plaintiff made no effort to serve and failed to ask for an extension within a reasonable period of time, acknowledging that “[i]t is obvious that any defendant would be harmed by a generous extension of the service period beyond the limitations period for the action”).Kogan, 334 F.R.D. at 403-04. Allowing an extension of time to serve would substantially prejudice Skyler in that he would be obligated to defend against claims that “are otherwise no longer viable.”
The delay in service is also particularly prejudicial to Skyler because this case involves alleged events that took place over two decades ago. See, e.g., Junior-Donohue v. Fudge, No. 23-CV-2474 (VSB), 2023 WL 5152299, at *4 (S.D.N.Y. Aug. 10, 2023) (holding that, in a case involving events that took place over ten years before the suit was filed, “[t]he specter of prejudice to Defendants from delays in service compound the challenges of defending the action because of the passage of time”); Khanukayev v. City of New York, No. 09-CV-6175 (CM) (GWG), 2011 WL 5531496, at *4 (S.D.N.Y. Nov. 15, 2011) (“As to prejudice to the defendants, the Court's decision is informed by the fact that the 39 individual police officers, if required to defend this action, will be called upon to recall 44 summonses they issued many years ago.”); Georgiadis v. First Bos. Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (“The passage of time always threatens difficulty as memories fade. Given the age of this case, that problem probably is severe already. The additional delay that plaintiff has caused here can only make matters worse.”).
Courts may weigh other equitable considerations beyond the four core factors discussed above. See Kogan, 334 F.R.D. at 404. One such consideration is whether the plaintiff was represented by counsel:
“the fact that plaintiff [is] not proceeding pro se, but [is] represented by a licensed attorney, favors denial of the motion [for an extension],” Benites, 2023 WL 1966181, at *5, because it is “incumbent on that attorney to protect plaintiff's rights by seeing to it that the complaint was properly served in a timely manner. To the extent that that was not done, the fault lies not with the defendants or with the Court, but with plaintiff's counsel.” Carl v. City of Yonkers, No. 04 CIV. 7031 (SCR), 2008 WL 5272722, at *7 (S.D.N.Y. Dec. 18, 2008), aff'd, 348 Fed.Appx. 599 (2d Cir. 2009).Junior-Donohue, 2023 WL 5152299, at *5. Plaintiff here is represented by counsel, which is an additional reason why an exercise of discretion to extend the time to serve would be improvident.
I do not believe that Plaintiff has shown that the balance of hardships favor granting a discretionary extension of time to serve Skyler, and Plaintiff fails to provide any colorable excuse for her neglect, so I respectfully recommend against granting a discretionary extension.
Conclusion
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for an extension of time to serve (ECF 30) be DENIED. If Your Honor agrees with that recommendation, then I respectfully recommend that the claims against Skyler be DISMISSED pursuant to Fed.R.Civ.P. 4(m) due to Plaintiff's failure to timely serve him.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO REPORT AND RECOMMENDATION
The parties shall have fourteen days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure to this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods.
THE FAILURE TO OBJECT WITHIN FOURTEEN DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140 (1985).