Summary
finding good cause where delay in serving process "was a result of an apparent oversight by the Clerk of the Court's Office"
Summary of this case from Jones v. Westchester Cnty.Opinion
98-CV-643
April 25, 2000.
Alvin K. Morrison, Sr., Utica, N.Y., for plaintiff.
Hon. Eliot Spitzer and Senta B. Siuda, Esq., Syracuse, N.Y., for defendants.
MEMORANDUM DECISION AND ORDER
The plaintiff is an African American who was employed by defendant New York State Division for Youth Children and Family Services at its Tryon Residential Facility for over nine years, and was given positive work evaluations throughout this period. Early in 1996, defendant Coultry was hired to fill the position of Assistant Director.
While driving home on March 1, 1996, plaintiff was arrested for allegedly driving while intoxicated. ("DWI") Although plaintiff reported this incident to his immediate supervisor, defendant Bumpus, on March 2, 1996, he was disciplined by this defendant on March 5, 1996 for not calling in on March 1, 1996.
Plaintiff alleges that at a staff meeting held March 20, 1996, defendant Coultry singled him out for loud criticism, and told him that he should seek other employment if he did not like working at the Tyron Residential Facility. Plaintiff claims that on March 27, 1996, defendant Coultry interrogated him about his DWI arrest even though no employee had ever before been interrogated concerning an arrest for DWI.
On April 4, 1996, plaintiff and defendant Bumpus discussed his claim that other employees had made racist comments towards him. Plaintiff further discussed this claim with defendants Bumpus and Coultry during a meeting on April 10, 1996.
On April 12, 1996, plaintiff was again interrogated by defendant Coultry regarding his March 1, 1996 DWI arrest. No reason was given for this second interrogation, and plaintiff declined to answer any questions.
On May 1, 1996, defendant Conkling, Director of the Tyron Residential Facility, issued a memorandum to the staff in regard to the issue of race discrimination at the Facility.
On May 23, 1996, defendant New York State Division for Youth issued a notice of discipline against plaintiff requesting that his employment be terminated for failure to answer questions at defendant Coultry's second DWI interrogation on April 12, 1996. Additionally, plaintiff was suspended without pay.
On August 14, 1996, an arbitrator found plaintiff guilty as charged, but determined that the termination penalty proposed by defendants was unreasonable and administered a retroactive three month penalty. Plaintiff returned to work on August 23, 1996, and was advised that he had been transferred to an allegedly less desirable employment station.
Plaintiff filed his complaint on April 23, 1998 and maintains therein that defendants' actions were motivated by his race and in retaliation for his exercise of rights protected by Title VII of the Civil Rights Act of 1964.
DISCUSSION
Currently before the court is defendants' motion to dismiss the complaint pursuant to 12(b)(2) Fed.R.Civ.P., for lack of jurisdiction over the defendants; pursuant to 12(b)(5) for insufficient service of process on defendants, and pursuant to 12 (b)(6) for failure to state a claim upon which relief can be granted.
When the defense of lack of personal jurisdiction pursuant to Rule 12(b)(2) has been raised, the plaintiff has the burden to prove facts sufficient to establish personal jurisdiction by a preponderance of the evidence. Time Share Vacation v. Atlantic Resorts. Ltd., 735 F.2d 61, 65 (3d Cir.), cert. denied, 113 S.Ct. 61 (1992). Unlike a Rule 12(b)(6) motion for failure to state a claim, plaintiff may not rely on bare pleadings alone to withstand a Rule 12 (b)(2) motion to dismiss, but must respond with actual proofs, such as sworn affidavits or other competent evidence. Patterson v. F.B.I., 893 F.2d 595, 603 (3d Cir.), cert. denied, 111 S.Ct. 48 (1990). District courts are afforded "considerable procedural leeway" in deciding these motions. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).
A dismissal under Rule 12(b)(6) is a dismissal on the merits of the action, a determination that the facts alleged in the complaint fail to state a claim upon which relief may be granted. Teltronics Services. Inc. v. LM Ericsson Telecommunications. Inc., 642 F.2d 31, 34 (2d Cir.) Cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). In deciding a 12(b)(6) motion, the court "must accept as true all the allegations of the complaint and all reasonable inferences that can be drawn therefrom, and view them in a light most favorable to the nonmoving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3rd Cir. 1989). Dismissal of a claim is not proper unless it is obvious that the plaintiff is unable to prove no set of facts supporting his claim which will enable him to prevail. Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). A complaint may be dismissed, however, when the facts pleaded and the reasonable inferences therefrom are legally insufficient to support the relief sought. Commonwealth of Pennsylvania v. ex rel. Zimmerman v. Pepsico. Inc., 836 F.2d 173, 179 (3d Cir. 1988). "The function of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution Corp. v. Merrill. Lynch Commodities. Inc., 748 F.2d 744, 749 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 363, 369 (2d Cir. 1980).
Rule 12(b)(5) of the Fed.R.Civ.P. provides that a defendant may move to dismiss the complaint for "insufficiency of service of process." Rule 4(m) of the Fed.R.Civ.P. states that "if service of a summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court . . . shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if plaintiff shows good cause for the failure, the court shall extend the time of service for an appropriate period.
If plaintiff did not serve the complaint within this time period, he must show good cause for failure to do so. The court finds that such good cause exists. Plaintiff's delay in serving process on the defendants within the 120 day time frame was a result of an apparent oversight by the Clerk of the Court's Office. In his papers opposing defendants' motions, plaintiff has included a letter from the Clerk's Office dated December 8, 1999, stating that it was unsure whether summons were ever issued in his case, and forwarded summons to plaintiff for service upon the defendants. It appears that plaintiff may have relied to his detriment on the Clerk of the Court, resulting in his delay in serving the defendants herein. If such was indeed the case, plaintiff has shown "good cause" for delaying service of the summons. If service was then properly made within 120 days of plaintiff's receipt of the summons from the Court Clerk, it would have been proper because defendants have not demonstrated that they would have been prejudiced by the delay.
At oral argument on the motions in the instant case, defendants' counsel advised the court that she was unaware of the Clerk's Office oversight at the time her motions were made, and conceded that plaintiff had good cause for not serving defendants within 120 days of the filing of his complaint.
Upon receipt of the summons from the Court Clerk plaintiff personally served defendant Bumpus on February 13, 2000, and slid a copy of the summons and complaint under the door of defendant Conkling's office. Fed.R.Civ.P. 4(c)(20(A) provides that the "summons and complaint shall, except as provided in subparagraphs (B) and (C) of this paragraph, be served by any person not a party (emphasis added). If service of the summons and complaint were to be governed by New York Law, a party to the action is also prohibited from making such service, Rule 2 103(a) N.Y. Civil Practice Law and Rules. Defendants Bumpus and Conkling claim that they were improperly served by the plaintiff and that defendants Coultry and the New York State Division were never served in any manner. The record before the court shows that these assertions are correct. The fact that plaintiff is proceeding pro se does not excuse him from properly serving the defendants. Systems Signs Supplies v. United States Department of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
Plaintiff's argument that his attempts at service gave defendants adequate notice of his lawsuit is unpersuasive. Notice of suit received by means other than those authorized by statute or rule cannot serve to bring a defendant within the jurisdiction of the court. National Development Co. v. Triad Holding Co., 131 F.R.D. 408 (S.D.N.Y.), aff'd, 930 F.2d 253 (2d Cir.), cert. denied, 502 U.S. 968, 112 S.Ct. 440, 116 L.Ed.2d 459 (1991). That defendant received actual notice of a pending suit does not cure a service defect. "Actual notice alone will not sustain the service or subject a person to the court's jurisdiction where there has not been compliance with the prescribed conditions of service." Buggs v. Ehrnschwender, 968 F.2d 1544, 1548 (2d Cir. 1992) (quoting Marcoff v. South Nassau Community Hospital, 61 N.Y.2d 283, 473 N.Y.S.2d 766. The right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law and does not excuse his lack of knowledge of service procedures and does not constitute good cause for his failing to perfect service upon individual defendants. Kersh v. Derozier, 851 F.2d 1509, 1515 (5th Cir. 1988). "[A] judge is certainly not required to treat inadvertence or ignorance of the rules as good cause or excusable neglect for delay in service," Zankel v. United States, 921 F.2d 432, 436 (2d Cir. 1990). To hold that complete ignorance of the rule for proper service constitutes good cause for untimely service would swallow the good cause exception to the rule. Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1998). The court will then grant defendants' Rule 12(b)(5) motion to dismiss the complaint for failure to properly serve the defendants in this lawsuit.
Recognizing that the court's ruling dismissing plaintiff's complaint for improper service may result in a statute of limitations bar to the renewal of his claim, Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990), and acknowledging that a pro se complaint "however inartfully pleaded, is held to less stringent standards than formal pleadings drafted by lawyers," the court will consider the allegations of plaintiff's complaint. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980).
While plaintiff's complaint alleges a civil rights violation without statutory reference, the court will consider its allegations and determine if it states a cause of action under 42 U.S.C. § 1981 or § 1983 or Title VII of the Civil Rights Act.
To establish a claim under 42 U.S.C. § 1981 a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; (3) the discrimination concerned one or more activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.). Plaintiff's complaint does not allege that he is a member of "a racial minority," therefore his complaint should be dismissed as to his § 1981 claim.Sherlock v. Montefiore Medical Center, 84 F.3d 522, 527 (2d Cir. 1996)
To promulgate a § 1983 claim, plaintiff's complaint must allege either/or a violation of equal protection or due process rights. In claiming a denial of equal protection rights, a plaintiff must allege purposeful and systematic discrimination by specifying instances in which plaintiff was singled out for unlawful oppression in contrast to others similarly situated. Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1993). A plaintiff's due process claim must identify any constitutionally protected right that was violated, Kashelkar v. MacCartney, 79 F. Supp.2d 370 (S.D.N.Y. 1999). Plaintiff has not stated the basis for his denial of equal protection rights, who would be similarly situated to him, and any facts supporting an equal protection claim. Plaintiff has also failed to name any constitutionally protected right that was violated or even allege what process was due. Plaintiff's claims under § 1981 and § 1983 are, therefore, without merit.
A Title VII claim requires the filing of charges with the New York State Division of Human Rights ("DHR") within 300 days of the discriminatory action, 42 U.S.C. § 2000e-5 (e). A Title VII claim may be filed in federal court only if the claimant has filed a timely complaint with the Equal Employment Opportunity Commission ("EEOC") and obtained a right-to-sue letter therefrom, 42 U.S.C. § 2000e-5 (e) and (f). The suit must be instituted after receipt of the right-to-sue letter. The record in this case does not show that these requirements and time limitations were complied with by the plaintiff.
Accordingly, on the basis of the above findings, defendants' motion pursuant to Rule 12(b)(2) is DENIED, defendants motions' pursuant to Rule 12(b)(5) and 12(b)(6) are GRANTED and the complaint is dismissed.
IT IS SO ORDERED
Dated: April 21, 2000 Syracuse, New York