The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action for declaratory, injunctive and monetary
relief for violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000 et
seq., of 42 U.S.C. § 1981*fn1 and of New York Executive Law §
296 (McKinney 1982).*fn2 Defendants move to dismiss pursuant to Rule
12(c) of the Federal Rules of Civil Procedure.*fn3 For the reasons that
follow, the defendants' motion is granted.
The following statement of facts is based upon the allegations set
forth in plaintiff's complaint, which for purposes of this motion, are
assumed to be true.
Plaintiff, a black female, was hired as a Provisional Psychologist I at
defendant Rockland Children's Psychiatric Center ("RCPC") on May 28,
1981. See Complaint at ¶ 12. Plaintiff was advised to and did apply
for the Civil Service tests for the Psychologist I and II classifications
by June 8, 1981 so that she could be on both eligibility lists. Id. at
¶ 15. According to the complaint, RCPC had an opening for a
Psychologist II position in December 1981, or January 1982. Id. at ¶
16. Plaintiff possessed the necessary qualifications for an opening in
the Psychologist II position but was consistently denied the position
without explanation. Id. at ¶ 14, 16. The position remained vacant
for a period of a few months, and then a white male was placed in the
position temporarily with another white male permanently being placed in
the position in July 1982. Id. at ¶ 17, 18.
Subsequently, in October 1982, plaintiff was appointed to a permanent
Psychologist I position and was placed on probationary status for a
one-year period. Id. at ¶ 22; See N.Y.Civ.Serv.Law § 63 (McKinney
1983). On October 3, 1983, just prior to the end of her probationary
period, plaintiff was terminated from her position. Complaint at ¶
23. On October 6, 1983, plaintiff instituted proceedings before the New
York State Division of Human Rights ("SDHR") by filing a verified
complaint charging defendants with employment discrimination. See
Plaintiff's Declaration in Opposition to Defendants' Motion for Judgment
on the Pleadings ("Plaintiff's Decl.") at ¶ 4. On March 15, 1985, the
SDHR determined that there was probable cause to believe that defendants
had engaged in the discriminatory practice charged, and by letter dated
April 30, 1986, the United States Equal Employment Opportunity Commission
(the "EEOC") issued a Notice of Right to Sue. Id. at ¶ 5-6.
Plaintiff filed the complaint in the instant action on July 29, 1986.
However, defendants were not served until March and April of 1987.*fn4
Defendants, in their answer, raised as the tenth affirmative defenses
that "[t]he complaint was served in excess of 120 days beyond the date of
filing of the complaint, and is therefore dismissible pursuant to
F.R.C.P. Rule 4(j)." See Answer at 9. On September 30, 1988, defendants
submitted a Pre-Trial Order which set forth seven issues of law, none of
which was the Rule 4(j) issue. Plaintiff's
Decl. at ¶ 23. However, that Pre-Trial Order was not accepted by this
Court because it failed to comply with the Court's rule requiring the
filing of a joint Pre-Trial Order. On May 8, 1990, defendants moved to
dismiss the complaint on the ground, inter alia, that the complaint was
served more than 120 days after it was filed.*fn5
Since Rule 4(j) is aimed at ensuring diligent prosecution of civil
cases, unless a plaintiff can show "good cause" or "excusable neglect"
for untimely service, the complaint must be dismissed. See Zankel v.
United States, 921 F.2d 432, 436 (2d Cir. 1990); Yosef v. Passamaquoddy
Tribe, 876 F.2d 283, 287 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110
S.Ct. 1474, 108 L.Ed.2d 611 (1990). However, a defense based upon
untimely service of process may still be waived, even though it is
initially asserted in the answer. See Datskow v. Teledyne, Inc.,
899 F.2d 1298, 1303 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct.
149, 112 L.Ed.2d 116 (1990); Burton v. Northern Dutchess Hosp., 106
F.R.D, 477 (S.D.N.Y. 1985); Vozeh v. Good Samaritan Hosp., 84 F.R.D.
143, 144 (S.D.N.Y. 1979).
Plaintiff, while conceding the untimeliness of service, argues that
defendants have waived their Rule 4(j) objection by failing to raise it
at a Pre-Motion Conference, in their initial motion to dismiss, or in
their Pre-Trial Order.*fn6 Defendants contend that there was no waiver
and that even if there were a waiver, they should be relieved from that
waiver because plaintiff has not in any way been prejudiced by defendants
conduct. The Court agrees for the following reasons.
First, plaintiff received notice of defendants' claim that service was
untimely when it was specifically raised in the answer. Compare Zankel,
921 F.2d at 437 (fact that the government did not disclose the specific
character of plaintiff's defective service until fourteen months after
the suit was commenced weighs against dismissal). Second, the defect
could not have been cured, see e.g., Santos v. State Farm Fire & Casualty
Co., 902 F.2d 1092, 1096 (2d Cir. 1990), because the 120 day time period
had already expired before service was even attempted. Thus, as plaintiff
conceded at Oral Argument, if defendants had moved to dismiss earlier on
that ground the Court would have been constrained to grant that motion.
Finally, plaintiff did not file her complaint until one day before the
statute of limitations on the Title VII claim had expired.*fn7 Thus,
even if defendants had moved to dismiss immediately, a motion which, as
noted above, the Court would have been required to grant, any new
complaint that plaintiff could have filed would have been time barred.
See Frasca v. United States, 921 F.2d 450 (2d Cir. 1990); Burks v.
Griffith, 100 F.R.D. 491 (N.D.N.Y. 1984).
Accordingly, defendants' motion for judgment on the pleadings pursuant
to Fed.R.Civ.P. 12(c) is granted, The Clerk of the Court is directed ...