Opinion
98 Civ. 7243 (LAK)
January 13, 2000.
ORDER
Plaintiff moves, pursuant to Fed.R.Civ.P. 60(b), to vacate the order, dated April 7, 1999, dismissing this case without prejudice for failure to effect service within the requisite time.
This action was commenced on October 15, 1998. Under Fed.R.Civ.P. 4(m), plaintiff was obliged to effect service within 120 days. He did not do so. Nevertheless, the Court on March 3, 1999 granted his request and extended the time for effecting service and filing proof thereof until March 31, 1999. When no proof of service was timely filed, the Court on April 7, 1999 dismissed the action without prejudice.
The motion to vacate, which was filed on January 10, 2000 — more than nine months after the order of dismissal — shows that plaintiff on March 26, 1999 first requested the United States Marshal to make service, that service was effected by the United States Marshal on April 28, 1999, and that the return of service filed on March 23, 1999. No explanation is given for the delay in bringing on this motion.
While plaintiff does not specify which division of Rule 60(b) he relies upon, the only possibly applicable sections are (1) and (6). In either case, the Rule requires that the application be made "within a reasonable time." What is reasonable will vary from case to case and depends on, among other things, whether the adverse party has been prejudiced and "whether the moving party had some good reason for his failure to take appropriate action sooner." 11 Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 2866, at 382-83 (1995). While there has been no showing of prejudice here, plaintiff's failure to explain the nine month delay in seeking relief is very troublesome.
Plaintiff was well aware that his time for effecting service and filing proof thereof, which had been extended once, was running out. He waited until the last minute even to request the Marshal to make service and certainly knew that proof of service had not been filed by March 31. Had he been attending diligently to this matter, he would have known of the dismissal on or shortly after April 7 and, by the end of that month, that service had been effected. Yet he simply did nothing. The delay was unreasonable. See Truskoski v. ESPN, Inc., 60 F.3d 74, 76 (2d Cir. 1995); Amoco Overseas Oil Co. v. Compagnie Nationale Algerienne de Navigation, 605 F.2d 648, 656 (2d Cir. 1979); Marks v. U.S. Social Security Administration, 963 F. Supp. 517, 521 (E.D.Va. 1997); United States v. Assad, 179 F.R.D. 170, 172 (M.D.N.C. 1998).
Indeed, the record does not suggest that he was unaware of these events as they occurred.
The motion is denied. Plaintiff of course remains free to file a new action, subject to any intervening statute of limitations.
SO ORDERED.
Dated: January 13, 2000
_____________________________________________ Lewis A. Kaplan, United States District Judge