Opinion
Civil No. 9:02-CV-962 (FJS/GLS)
June 18, 2003.
WALTER A. WHITE, Plaintiff, Pro Se.
STEPHEN M. KERWIN, ESQ., Assistant Attorney General, HON. ELIOT SPITZER, Attorney General of the State of New York, for the Defendants.
REPORT-RECOMMENDATION
I. Introduction
This matter has been referred to the undersigned for a Report-Recommendation by the Honorable Frederick J. Scullin, Jr., Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). On October 18, 2002, the defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). Dkt. No. 7. On October 31, 2002, pro se plaintiff, Walter White responded to the motion. Dkt. No. 10. On June 5, 2003, White filed a motion for summary judgment. Dkt. No. 11. For the reasons set forth below, both the motion to dismiss and the motion for summary judgment should be denied without prejudice.
In a letter dated June 9, 2003, the defendants filed a notice of appearance by Stephen M. Kerwin and requested that the motion for summary judgment be stayed pending the outcome of the motion to dismiss. In the alternative, the defendants request the summary judgment motion be postponed for ninety (90) days in order to permit the new attorney assigned to this case time to respond.
II. Service of Process
In this case, the defendants contend that White has failed to properly serve the summons and complaint, thereby failing to secure the court's personal jurisdiction over the defendants. The defendants maintain that service was defective because White merely sent one copy of the summons and complaint to each defendant by U.S. Mail, failing to properly serve the defendants under Fed.R.Civ.P. 4(e)(2). Furthermore, the defendants maintain that under § 312-a of the New York Civil Practice Law and Rule ("CPLR"), plaintiff may, as an alternative to the methods of personal service, use the mail for service of process. However, they contend that he also failed to fully comply with CPLR § 312-a.Clearly, the record shows that the defendants were not served in compliance with Fed.R.Civ.P. 4(e)(2) or CPLR § 312-a. Normally, this failure would require the court to recommend dismissal for failure to properly serve the defendants. However, the court notes that White proceeds pro se and may be unfamiliar with the court's procedural rules. It is conceivable that he is unaware of how to properly serve the defendants. Fortunately, the interests of justice allow the court, for good cause pursuant to Fed.R.Civ.P. 4(m), to extend the time for service for an appropriate period.
Accordingly, this court recommends that White be given sixty (60) days to properly serve the defendants. Furthermore, this court recommends that the defendants' motion to dismiss for lack of personal jurisdiction be denied without prejudice to re-file if White fails to properly serve the defendants. In addition, this court recommends White's motion for summary judgment be denied, without prejudice, as premature since the defendants have not been properly served and no answer has been filed.
For the reasons stated herein, it is hereby
RECOMMENDED, that the District Court issue an order that within SIXTY (60) DAYS of the filing of that order, White be directed to properly serve the defendants; and it is further
RECOMMENDED, that the defendants' motion to dismiss (Dkt. No. 7) be DENIED without prejudice to re-file if White fails to properly serve the defendants; and it is further
RECOMMENDED, that White's motion for summary judgment (Dkt. No. 11) be DENIED, without prejudice, as premature since he has failed to properly serve the defendants and no answer has been filed; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN (10) days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).