Opinion
20-CV-7468 (CS)
02-23-2021
ANTHONIA IBOK, Plaintiff, v. EXTENDED STAY AMERICA (ESA); JESSICA (JOINED IN THE CHARGE), Employee (ESA), Defendants.
ORDER OF SERVICE :
Plaintiff brings this pro se action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634, 42 U.S.C. § 1981, and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297, alleging that a potential employer discriminated against her based on her race, color, national origin, and age. By order dated January 5, 2021, the Court granted Plaintiff's request to proceed in forma pauperis.
DISCUSSION
A. Service on Extended Stay America (ESA)
Because Plaintiff has been granted permission to proceed IFP, she is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process . . . in [IFP] cases."); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. If the complaint is not served within that time, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service); see also Murray v. Pataki, 378 F. App'x 50, 52 (2d Cir. 2010) ("As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes 'good cause' for an extension of time within the meaning of Rule 4(m).").
To allow Plaintiff to effect service on Defendant Extended Stay America through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form ("USM-285 form") for this defendant. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon this defendant.
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so. B. Valentin order
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit Extended Stay America (ESA) to identify "Jessica." It is therefore ordered that the ESA must ascertain Jessica's last name and an address where Jessica may be served. ESA must provide this information to the Court within sixty days of the date of this order. The Court will review this information, and if necessary, direct the Clerk of Court to effect service on this defendant.
C. Motion for Pro Bono Counsel
The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are "[t]he factor which command[s] the most attention." Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.
The Clerk of Court is further instructed to complete the USM-285 form with the address for ESA and deliver all documents necessary to effect service to the U.S. Marshals Service.
The Court denies without prejudice Plaintiff's motion for pro bono counsel (ECF 1).
The Clerk of Court is directed to mail a copy of this order and the complaint to ESA at: 25 Merrick Blvd., Fishkill, NY, 12524. SO ORDERED. Dated: February 23, 2021
White Plains, New York
/s/_________
CATHY SEIBEL
United States District Judge
DEFENDANT AND SERVICE ADDRESS
Extended Stay America
25 Merrick Blvd.
Fishkill, NY 12524