Opinion
98 Civ. 3830 (RCC) (AJP)
February 14, 2002
Opinion and Order
Plaintiffs filed this action against Defendants, police officers employed by the City of New York, pursuant to 42 U.S.C. § 1983 and 1985. By Report and Recommendation ("Report") dated January 21, 1999, Magistrate Judge Andrew J. Peck recommended that Plaintiffs' amended complaint be dismissed with prejudice for: (1) failure to timely serve the complaint to Defendants pursuant to Federal Rule of Civil Procedure 4(m); (2) failure to comply with a court order; and, (3) failure to prosecute. On February 16, 1999, Plaintiffs requested extensions of time to object to the Report and to serve process on Defendants. For the reasons set forth below, the Court declines to extend Plaintiffs' time limits to serve process and to file any further Objections to the Report, and adopts Magistrate Judge Peck's recommendation to dismiss with prejudice.
All the documents discussed in this opinion are filed with the Clerk's Office and are a matter of public record.
Plaintiffs instituted their original action as pro se plaintiffs on May 29, 1998. Sometime after, Plaintiffs retained counsel and, by letter dated July 14, 1998, informed District Court Judge Sonia Sotomayor of this circumstance. On July 30, 1998, Judge Sotomayor ordered that Plaintiffs' claims would be dismissed unless Plaintiffs' submitted an amended complaint within thirty days. Although the amended complaint was dated August 29, 1998, the date on which it was due, it was not received and filed by the Clerk of the Court until August 31, 1998. On that same day, Judge Sotomayor issued an order dismissing the complaint because Plaintiffs had failed to file an amended complaint within thirty days of the July 30th Order. Two months later, in a letter dated September 30, 1998, Plaintiffs' counsel, Mr. Sussman explained that the deadline had fallen on a weekend, and that he had filed the amended complaint on the following Monday. Subsequently, Judge Sotomayor rescinded the August 31st Order and instructed Mr. Sussman to serve his adversary with the amended complaint.
In the amended complaint, Plaintiffs seek $25 million in compensatory damages and $75 million in punitive damages for alleged violations of their Fourth, Fifth, and Fourteenth Amendment rights, as well as state constitutional rights, and pursuant to 42 U.S.C. § 1983 1985. Plaintiffs claim that Defendants conspired to violate Plaintiffs' civil rights by "compos[ing] and publish[ing] a sworn complaint which was false and specifically designed to cleans the defendants from the consequences of their forceful and illegal entry into the target premises." (Amended Complaint at 3). Plaintiffs also claim that Defendants conspired "to violate the conditions imposed on them by the search warrant, to obstruct justice and to commit perjury in order for the express purpose of camaflouging [sic] their wrongful entry into the target premises . . ." (Amended Complaint at 4).
On November 5, 1998, Plaintiffs' action was reassigned to this Court, and notification of the reassignment was sent to Plaintiffs individually, but not to Mr. Sussman. By Order of Reference to a Magistrate Judge, dated December 11, 1998, this case was then assigned to Magistrate Judge Peck. On December 16, 1998 Magistrate Judge Peck faxed an order to Mr. Sussman reminding him that Fed.R.Civ.P. 4(m) required that Plaintiffs serve Defendants with a copy of the complaint within 120 days of filing, in this case by December 29, 1998, or risk dismissal of their case.
In his Report dated January 21, 1999, Magistrate Judge Peck noted that more than 120 days had passed from the date Plaintiffs had filed their amended complaint and that neither his chambers nor the Clerk's Office had received an affidavit of service. Magistrate Judge Peck further stated that his courtroom deputy telephoned Mr. Sussman on January 12, 1999 to inquire whether service of process has been effected and Plaintiff's counsel indicated that he would get back to him. Magistrate Judge Peck also indicated that his deputy left messages on January 14 and 15 and that Mr. Sussman did not return any of the calls. As a result, Magistrate Judge Peck recommended that Plaintiffs' complaint be dismissed with prejudice for failure to timely serve the complaint, failure to comply with a court order, and failure to prosecute. Magistrate Judge Peck further instructed Plaintiffs that they had ten days from receipt of the Report to file objections and that a failure to file would result in waiver of those objections for purposes of appeal.
Plaintiffs filed papers, titled Objections to Report and Recommendation, with the Court on February 16, 1999, twenty-five days after the Report was issued. In their papers, Plaintiffs moved for time extensions to serve Defendants with the summons and complaint and to file their Objections. Plaintiffs counsel also included an affirmation ("Affirmation") detailing his objections to the Report.
II. DISCUSSION
Plaintiffs failed to file Objections to Magistrate Judge Peck's Report within ten days of receipt as required by 28 U.S.C. § 636(b)(1)(C). Instead, Plaintiffs' counsel filed a four-page Affirmation on February 16, 1999, more than twenty-five days after the Report was issued. Attached to the Affirmation, was a request for an extension of time to object to the Report. This Court has considered Plaintiffs' papers, despite their late submission, and denies Plaintiffs ally extensions of time to further object and effect process. After reviewing the record de novo see Fed.R.Civ.P. 72(b), this Court accepts and adopts the Report in its entirety and dismisses Plaintiffs' claims with prejudice.
Fed.R.Civ.P. 6(a) requires that Saturdays, Sundays and legal holidays be excluded from the computation of time, if the prescribed period is less than ten days. Even after excluding these days however, Plaintiffs still filed their papers after the ten day period had passed.
In his Affirmation, Mr. Sussman stated that he had attempted to effect service and that he had informed the Court of those efforts as well as the problems he was encountering. Mr. Sussman explained that the summons and complaint had been brought to One Police Plaza to attempt service of process upon Defendants and that the Police Department had refused to either accept service on Defendants' behalf or provide Defendants' work locations. Mr. Sussman also claimed that he had sent a letter dated January 25, 1999 in response to the telephone calls from Magistrate Judge Peck's deputy. A copy of the letter, which stated that Plaintiffs had not yet effected service on Defendants because the police department had been uncooperative, was attached to the back of the Affirmation. This Court notes that the original of the letter was never received by mail or by fax.
Mr. Sussman also stated that he had never received December 16, 1998 Order in which Magistrate Judge Peck instructed Plaintiffs to effect service upon Defendants or risk dismissal pursuant to Fed.R.Civ.P. 4(m). Furthermore, he stated that he had not been made aware of the fact that Magistrate Judge Peck was considering dismissal under Fed.R.Civ.P. 4(m), despite his conversations with the deputy clerk. Mr. Sussman therefore argued that Fed.R.Civ.P. 4(m) requires that notice be provided to a plaintiff before a court can dismiss an action and that Plaintiffs had not received notice.
This Court was not informed of the problems Plaintiffs were having in effecting service until February 16, 1999, when Plaintiffs' counsel attached a letter to the back of his Affirmation. At that time, approximately 169 days had passed since the complaint was filed. Moreover, Plaintiffs did not request an extension of time to serve process upon Defendants until that same date. Plaintiffs have consistently had difficulty with deadlines: for filing their amended complaint; for serving process upon Defendants; and, for objecting to the Report. Consequently, this Court has significant reason to doubt whether all of Plaintiffs' repeated delays are excusable. Moreover, counsel has an obligation to monitor the Court's dockets. S.E.C. v. Thrasher, 1996 WL 528999, *1 (S.D.N.Y. Sept. 18, 1996). This Court therefore finds that tile issuance of Magistrate Judge Peck's December 16, 1998 order as well the numerous phone calls placed by his deputy clerk constituted more than sufficient notice to Plaintiffs that they were well beyond the 120 day time period of Fed.R.Civ.P. 4(m).
Furthermore, Magistrate Judge Peck recommended that the case be dismissed with prejudice on three different grounds: for failure to effect timely service upon Defendants; for failure to comply with a court order; and, for failure to prosecute. Fed.R.Civ.P. 41(b) permits the dismissal of a case "for failure of the plaintiff to prosecute or comply with . . . any order of the court." The Second Circuit has acknowledged that dismissal with prejudice is "a harsh remedy and is appropriate only in extreme situations." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Nonetheless, it has stated that the authority to invoke dismissal for failure to prosecute is "vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982).
III. CONCLUSION
For the foregoing reasons, this Court accepts and adopts Magistrate Judge Peck's Report and Recommendation in its entirety. Plaintiffs action is dismissed with prejudice. The Clerk of the Court is directed to close the files.
SO ORDERED: