Board and the District argue that dismissal of the Title VII claim is warranted because they were improperly served by mail; Blum argues that he too was improperly served because although it was appropriate to serve him by mail in the first instance, he never returned an acknowledgement form and plaintiff never attempted any other method of service on him.
(i) Service on the Board and the District
Under Federal Rule of Civil Procedure 4(j), dismissal is mandatory if service is not perfected within 120 days of filing, unless plaintiff can show good cause. Fed. R. Civ. P. 4(j); Yosef v. Passamaquoddy Tribe, 876 F.2d 283, 287 (2d Cir. 1989), cert. denied, 494 U.S. 1028, 108 L. Ed. 2d 611, 110 S. Ct. 1474 (1990). In order to properly effectuate service upon a governmental organization, the plaintiff must "deliver a copy of the summons and complaint to the chief executive officer or in the manner prescribed by the law of that state . . ." Fed. R. Civ. P. 4(d)(6). New York law provides that service on a school district be made by personal service on a school officer. N.Y. Civ. Prac. L. & R. § 311(7) (McKinney 1991). It does not specifically address service on a school board. In any case, service upon both the Board and the District cannot be effected by mail. Thus, service upon the Board and the District was not properly effected. Although plaintiff was entitled to cure the improper service within 120 days of filing, Fed. R. Civ. P. 4(j), plaintiff failed to do so in this case.
Having found that service on the Board and the District was improper and not cured, the Court turns to whether plaintiff can demonstrate good cause. See Yosef, 876 F.2d at 287. plaintiff's counsel argues that his office moves, difficulty in receiving mail, heavy travel schedule, illness and other personal problems constitute good cause for noncompliance with the requirements for proper service. The Second Circuit has held that, for example, poor office procedure does not constitute good cause. See Zankel v. United States, 921 F.2d 432, 438 (2d Cir. 1990). Moreover, among the factors a court should consider in determining whether there is good cause is "whether an asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court." Dominic v. Hess, 841 F.2d 513, 517 (3d Cir. 1988) (citations omitted).
In this case, the Court finds that not only are plaintiff's excuses simply "poor office procedure" under a different guise, but they are, for the most part, "easily manufactured and incapable of verification by the court." Id. Accordingly, the Court finds that there is no good cause to except plaintiff from the prescriptions of Rule 4(j) and dismissal of the instant action as to the Board and the District is appropriate.
(ii) Service on Blum
As noted, plaintiff served Blum by mail, Blum failed to return the acknowledgement form, and plaintiff did not attempt any other method of service on him. Rule 4 does provide that service by mail on an individual defendant is proper, Fed. R. Civ. P. 4(d)(1), but it also provides that if plaintiff does not receive acknowledgement of service within twenty days, he is required to effect service by alternate means pursuant to the Federal Rules. Fed. R. Civ. P. 4(c)(2)(C)(ii).
In this case, although plaintiff did not receive acknowledgement of service, the certified mail receipt reflects that Blum actually received notice of the action. The prevailing rule in the federal courts is that actual notice of the action does not militate against a finding of dismissal under Rule 4(j) where plaintiff has not received acknowledgement of service. See Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir. 1991); Statement by a Member of the House Committee on the Judiciary, 128 Cong. Rec. H9848 (daily ed. Dec. 15, 1982), reprinted in U.S. Code Cong. & Admin. News 4434, 4439-40. However, in Morse v. Elmira Country Club, 752 F.2d 35 (2d Cir. 1984), the Second Circuit departed from the prevailing rule and held that Rule 4(c)(2)(C)(ii) should not be read to "void a received-but-unacknowledged mail service," id. at 39, and that "strong factors of justice and equity push toward reading Rule 4(c) as providing for effective mail service where. . . the recipient actually receives the mail service but refuses to acknowledge it." Id. at 40. Other courts in this circuit have adhered to the principles enunciated in Morse. See, e.g., Leger v. Dessureault, 733 F. Supp. 786, 787 (D. Vt. 1990); Deshmukh v. Cook, 630 F. Supp. 956, 958 (S.D.N.Y. 1986). Defendants have failed to enlighten the Court in their supplemental brief as to why they should be excepted from the clear mandate of Morse. Accordingly, the Court declines to dismiss the Title VII claim against Blum on the ground of improper service.
C. Failure to Prosecute
Defendants argue that plaintiff has failed to prosecute this action pursuant to Fed. R. Civ. P. 41(b). While it is well settled that a dismissal pursuant to Federal Rule 41(b) is a matter of the district court's discretion, Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d Cir. 1983), among the factors a court should consider are the duration of plaintiff's inaction and the prejudice suffered by defendant. Id. In the instant case, plaintiff's inaction was minimal and in any case did not cause prejudice to defendants. Accordingly, in the exercise of its discretion, the Court declines to dismiss this action on that basis.
For the foregoing reasons, the Court hereby dismisses this action in its entirety as to the Board and the District. The Court also dismisses plaintiff's section 1983 claim as to Blum, but declines to dismiss plaintiff's Title VII claim against him.
Dated: Brooklyn, New York
July 23, 1992
DENIS R. HURLEY, U.S.D.J.