Opinion
01 Civ. 7078 (RLC)
January 24, 2003
Larry Rice, Pro se, Ballwin, MO
CHADBOURNE PARKE LLP, Attorneys for Defendants, New York, N.Y. Peter N. Hillman, Melissa J. LaRocca Of Counsel
OPINION
Plaintiff, Larry Rice, commenced this action against Skudder Kemper Investments, Inc. ("Skudder"), Wartsila NSD Power Development, Inc., d/b/a Warstila Diesel, Inc. ("Wartsila"), Illinova Generating Company ("Illinova"), Continental Energy Services, Inc. ("Continental"), Donald J. Ennen, John S. Weisse, Eyob Easwaran, and Michael O'Neill claiming illegal discrimination on the basis of race, national origin, and age in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. § 621 et seq., and the New York Human Rights Law. Plaintiff also alleges a breach of contract under New York law.
Defendants now move under Rule 12(b)(5), F.R.Civ.P., to dismiss plaintiff's complaint due to a failure to serve process in accordance with Rule 4(m), F.R.Civ.P.
FACTS
Plaintiff was terminated from his employment with Jamaica Energy Partners ("JEP"), a partnership controlled by the defendant corporations, on January 12, 1999. Plaintiff chose to arbitrate his termination and as a result of information produced at the arbitration in September of 2000, plaintiff believed he had a cause of action for illegal race, national origin, and age discrimination. On April 6, 2001, plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") and subsequently received a right to sue letter on May 4, 2001. Plaintiff filed the current action on August 1, 2001. During this time plaintiff was represented by counsel, Richard Hamburger.
Plaintiff continued to arbitrate his termination through the fall of 2001 but due to his inability to pay Hamburger's fees, Hamburger and plaintiff severed their relationship. On November 29, 2001, the court received a letter from plaintiff informing the court that he was no longer represented by counsel and that he required a 90 day extension to serve process on defendants. Plaintiff's extension was granted orally that day. On February 7, 2002, the court received another letter from plaintiff, acknowledging the extension and requesting to proceed pro se. Due to the court's schedule, plaintiff was granted pro se status on April 4, 2002.
At this time, plaintiff began his attempts to serve defendants by mailing them waivers of service. Defendants refused to waive service and plaintiff found it difficult to serve defendants personally. Many process servers apparently refused to serve plaintiff's summons and complaint either because plaintiff's extension was not in writing or the complaint still had the name and address of his previous counsel. By July 17, 2002, when defendants filed this motion, plaintiff still had not served any defendants. In the time between defendants' filing of this motion and November 25, 2002, the date of plaintiff's last communication with the court, plaintiff successfully served Skudder, Continental, Illinova, O'Neill, and Easwaran. Wartsila, Ennen, and Weisse remain unserved.
DISCUSSION
Defendants allege that plaintiff does not have good cause for failing to serve process within 120 days of filing his complaint, as required by Rule 4(m), F.R.Civ.P. Plaintiff, however, was not represented by counsel throughout the original 120 day period and did request an extension to the period of service. Furthermore, in light of plaintiff's lack of legal training, it was reasonable for plaintiff to presume he could not proceed with service until he was formally granted pro se status by the court in April. See Castro v. Manhattan East Suite Hotel, No. 01 Civ. 7912, 2002 WL 426221, at *1 (S.D.N.Y. Mar. 19, 2002) (Swain, J.) (reasonable allowances must be made to protect pro se litigants from inadvertent forfeiture of their rights).
Rule 4(m), F.R.Civ.P., provides in pertinent part, "If service of the 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 the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period."
Applying the 90 day extension from April, plaintiff also failed to timely serve process on defendants. This failure though was due to circumstances largely outside of plaintiff's control and plaintiff acted diligently in overcoming the obstacles to serving five of the defendants. See David v. G.M.D.C., No. 01 Civ. 6931, 2002 WL 31748592, at *4 (S.D.N.Y. Dec. 6, 2002) (Sweet, J.) (reasonable and diligent efforts establish good cause for failure to timely serve process). Moreover, defendants' claim of prejudice due to untimely service is unsupported in light of their failure show the unavailability of any witnesses or evidence. See Shider v. Communications Workers of Am., No. 95 Civ. 4908, 1999 WL 673345, at *3 (S.D.N.Y. Aug. 30, 1999) (Sotomayor, J.).
With regard to the three defendants who have not been served, plaintiff fails to give any reason why they still have not been served 9 months after plaintiff proceeded to serve defendants. While pro se litigants are entitled to leniency, see Buckley v. Doha Bank Ltd., No. 01 Civ. 8865, 2002 WL 1751372, at *3 (S.D.N.Y. July 29, 2002) (Hellerstein, J.), the Federal Rules of Civil Procedure are applicable to all parties, even if, as in this case, the statute of limitations will bar plaintiff from refiling his Title VII and ADEA claims. See Sunniland Fruit Co. v. PMI Produce Corp., Inc., No. 00 Civ. 8410, 2001 WL 761174, at *3 (S.D.N.Y. July 6, 2001) (Scheindlin, J.).
Upon dismissal, plaintiff's Title VII and ADEA claims with regard to the unserved defendants will be time barred because both actions require a filing with the EEOC within 300 days of the discriminatory activity or the time plaintiff should have discovered the discriminatory nature of the adverse employment action. See Stalter v. Bd. of Coop. Educ. Servs. of Rockland County, No. 02 Civ. 5513, 2002 WL 31833759, at *5*7 (S.D.N.Y. Dec. 13, 2002) (McMahon, J.); Johnson v. New York Univ. Sch. of Educ., No. 00 Civ 8117, 2002 WL 1144634, at *2 (S.D.N.Y. May 23, 2002) (Ellis, M.J.).
CONCLUSION
The court grants defendant's motion to dismiss with regard to the unserved defendants, Wartsila, Ennen, and Weisse and denies defendant's motion with regard to Skudder, Continental, Illinova, O'Neill, and Easwaran.
IT IS SO ORDERED