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BARCHER v. NEW YORK UNIV. SCH. OF LAW

January 28, 1998

ANN C. BARCHER, Plaintiff, against NEW YORK UNIVERSITY SCHOOL OF LAW, JOHN SEXTON, as Dean and Individually, OSCAR CHASE, as Vice Dean and Individually, NORMAN DORSEN, as Faculty Member and Individually, Defendants.


The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge :

 Plaintiff pro se, Ann C. Barcher, brings this action against defendants New York University School of Law ("NYU"), John Sexton, as Dean and Individually, Oscar Chase, as Vice Dean and Individually, and Norman Dorsen, as Faculty Member and Individually, under Title 42 United States Code ("U.S.C.") §§ 2000e et seq. ("Title VII") as well as under 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. §§ 1981, 1983, and 1985(3). Plaintiff alleges that defendants violated Title VII by discriminating against her on the basis of gender and retaliating against her for complaining about the discrimination. Defendants move for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, untimely service under Fed. R. Civ. P. 4(m), and abuse of in forma pauperis status under 28 U.S.C. § 1915(e). Defendants also seek to strike allegedly immaterial, impertinent, and scandalous matter in the complaint under Fed. R. Civ. P. 12(f), to amend the caption so as to strike certain named individuals, and to seal the file.

 This Court referred the action to the Honorable Sharon E. Grubin, United States Magistrate Judge, for preparation of a report and recommendation. On August 26, 1997, Judge Grubin issued a Report and Recommendation (the "Report") that this Court grant defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). According to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), 6(a) and 6(e), the parties have ten (10) days to file written objections to a report and recommendation after being served with a copy. This Court has received and considered objections from both plaintiff and defendants, reviewed the Report, and made a de novo determination, as required by 28 U.S.C. § 636(b)(1). The Court has found the Report is legally correct and proper as to the conclusions drawn therein regarding defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and such motion should be granted. This Court finds plaintiff's arguments to be entirely without merit, and therefore agrees with Magistrate Judge Grubin's Recommendation to deny plaintiff's request for appointment of counsel. See United States v. Raddatz, 447 U.S. 667, 676, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980) ("[Section 636(b)(1)] permit[s] whatever reliance a district judge, in the exercise of sound judicial discretion, [chooses] to place on a magistrate's proposed findings and recommendations.").

 In their objections to the Report, defendants state that Judge Grubin failed to address adequately defendants' alternate grounds for dismissal: the motions to dismiss for untimely service by plaintiff and for plaintiff's alleged abuse of in forma pauperis status. Defendants additionally request that this Court strike allegedly scandalous and immaterial matter from the complaint and seal the file. Judge Grubin denied the foregoing requests, and this Court is in agreement with her for the following reasons.

 DISCUSSION

 I. The Motion to Dismiss for Untimely Service

 Regarding the issue of untimely service in violation of Fed. R. Civ. P. 4(m), defendants claim that plaintiff failed to comply with such procedure when she personally served the defendants 54 days after the 120-day period for proper service. Although plaintiff is an attorney, she never has filed an action in federal court, and claims to have relied upon the U.S. Marshal's Office to serve process in this action. For whatever reasons, plaintiff brought the summons and complaint to the Marshal's Office on May 9, 1996 -- only days before the close of the 120-day period -- and the Marshal served process by mail on May 13, 1996. None of the four defendants returned their acknowledgment forms and the Marshal did not serve process personally until on or about July 8, 1996 -- approximately 54 days past the 120-day service period. When the Marshal mailed the process on May 13, defendants presumably received actual notice of the lawsuit on or around the termination date of the 120-day period. The United States Court of Appeals for the Second Circuit has held that mail service under Fed. R. Civ. P. 4(c)(2)(c) is effective when the recipient receives the summons and complaint and has such actual notice, so long as the serving party includes all documents necessary for proper service. See Morse v. Elmira Country Club, 752 F.2d 35, 39 (2d Cir. 1984). In the instant case, actual notice presumably would have reached defendants on May 16, 1996. The Court reaches this date by applying the standard three-day period for mail delivery. Since the Marshal mailed process on May 13, 1996, delivery is assumed on May 16. See, e.g., Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525-526 (2d Cir. 1996). Even though the arrival date may have, therefore, slightly exceeded the 120-day period for service, the overlap is not so gross as to justify dismissal. Moreover, a recent United States Supreme Court case notes the somewhat discretionary nature of Fed. R. Civ. P. 4, stating that even if there is no good cause for delayed service, the court may allow additional time. See Henderson v. U.S., 517 U.S. 654, 659, 134 L. Ed. 2d 880, 116 S. Ct. 1638 (1996). Examining the Rule in its historical context, the Supreme Court found the 120-day period "operates not as an outer limit subject to reduction, but as an irreducible allowance." Id. Accordingly, this Court chooses not to dismiss plaintiff's complaint on such ground.

 II. The Motion to Dismiss for Abuse of In Forma Pauperis Status

 Defendants assert that plaintiff has abused in forma pauperis status by filing a frivolous or malicious lawsuit. Pursuant to 28 U.S.C. §§ 1915(a) and (d), the district court may, in its discretion, dismiss an in forma pauperis action if the court determines that the plaintiff instituted the suit to harass the defendant or if the action has no rational basis in law or fact. In the instant case, this Court is unable to find that plaintiff brought her action to harass defendants or that she lacked reason to believe that she had a valid Title VII claim. While plaintiff never reported her allegations of harassment, it is not this Court's duty to determine whether or not the alleged acts occurred, or if she had a rational basis for thinking that defendants discriminated against her.

 III. The Request to Strike Allegedly Scandalous and Immaterial Matter in the Complaint

 While the Court recognizes that plaintiff's sexual harassment claims arise from unproven and unreported events that allegedly occurred over twenty years ago, the Second Circuit has stated clearly that district courts should be wary when deciding whether to grant a Rule 12(f) motion on the ground that the matter is impertinent and immaterial. See Lipsky v. Com. United Corp., 551 F.2d 887, 893 (2d Cir. 1976). Accordingly, courts must deny such a motion, "unless it can be shown that no evidence in support of the allegation would be admissible." Id. at 893; see also Gleason v. Chain Service Restaurant, 300 F. Supp. 1241 (S.D.N.Y. 1969), aff'd, 422 F.2d 342 (2d Cir. 1970). In the instant matter, ...


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