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.
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
Pursuant to Fed. R. Civ. P. 12(f), defendants seek to strike immaterial and scandalous material in the complaint and to amend the caption by removing the names of the individual defendants. The Court will address this matter, since the request remains at issue regardless of the dismissal of the suit.
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, that is simply not the case, for plaintiff certainly could testify as to the alleged harassment. Therefore, the exception enabling the striking of such material is not applicable.
IV. The Request to Seal the File
Defendants also seek to seal the complaint. The guidance of the Second Circuit is that it is only in rare circumstances when a court will seal the record of a proceeding. Even in a criminal proceeding, which arguably attaches a greater stigma to a defendant's reputation than in a civil case, the Second Circuit has stated that "[the power] . . . to seal the records of such [criminal] proceedings is one to be very seldom exercised, and even then only with the greatest caution, under urgent circumstances, and for very clear and apparent reasons." U.S. v. Cojab, 996 F.2d 1404, 1405 (2d Cir. 1993). Such urgent circumstances have been interpreted to allow sealing the record to preserve the government's need for secrecy because of a perceived threat to the defendant's safety. See id. at 1408. The Second Circuit also has named endangering of a witness's safety as an example of an appropriate basis for which to seal a record. See Gannett Co., Inc. v. Burke, 551 F.2d 916 (2d Cir. 1977), citing United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274 (2d Cir. 1975). There is a "strong presumption of access to court records." Video Software Dealers Assoc. v. Orion Pictures Corp., 21 F.3d 24, 26 (2d Cir. 1994). The Supreme Court has explained that "the decision as to access [to judicial records] is one best left to the sound discretion of the trial court, a discretion to be left exercised in light of the relevant facts circumstances of the particular case." Nixon v. Warner Comm., Inc., 435 U.S. 589, 599, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978).
In the instant case, this Court does not find sufficient reason to seal the record and deny the public access to this proceeding. While the allegations are serious, the record never asserts that they are true, and, moreover, the Court dismisses the case.
For the reasons stated above, defendants' motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and to dismiss each defendant individually are HEREBY GRANTED. Plaintiff's motion for appointment of counsel, defendants' motions to dismiss pursuant to Fed. R. Civ. P. 4(m) and 28 U.S.C. § 1915(e), and defendants' request to strike immaterial and scandalous material in the complaint, to amend the caption, and to seal the file are HEREBY DENIED.
New York, New York
January 28 1998
Peter K. Leisure
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