The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
On September 27, 1999, Pro Se Plaintiff Ivan Amnay ("Amnay")
filed a complaint against his former employer Defendants Del
Laboratories, Inc. ("Del Labs") and his supervisor Martha Pusey
("Pusey"), alleging that he had been wrongfully dismissed by Del
Labs as a result of his age and race. Currently before the court
are the motions by Del Labs and Pusey to dismiss the complaint
for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2)
for improper service of process.
Amnay claims while working under Pusey he was harassed because
of his age, race, and national origin. Amnay states that he
approached the Personnel Department to complain about this
harassment but his complaints fell on "deaf ears." In addition,
according to Amnay, Pusey retaliated against him for his
complaints to the Personnel Department. On May 18, 1998, four
months after being reassigned to Pusey, Amnay was terminated for
allegedly making excessive personal phone calls.
Amnay filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC") in August 1998. In
May 1999, Del Labs filed a response to the Amnay's complaint. In
a letter dated July 6, 1999, the EEOC said it was unable to
conclude that Amnay's civil rights were violated and issued to
him a "right to sue" letter.
Amnay initiated this action by filing a complaint in this
court on September 27, 1999. On December 14, 1999, according to
the affidavit of the Amnay's process server Hemawattie Mahadeo,
the Plaintiff attempted service of summonses on Del Labs and
Pusey by personal delivery to Arlene Guest, a receptionist at
the Del Labs offices. On the same day, Amnay mailed, via
certified mail, another copy of the complaint and summons to
"Del Labs, Inc." at the company's mailing address. Plaintiff
does not contend that he mailed a copy addressed to Pusey at
this time. Neither Del Labs nor Pusey responded to the summons
On January 18, 2000, Amnay sent another copy of the summons
and complaint, via certified mail, to Del Labs and Pusey at the
Del Labs address, demanding an answer to his complaint within 10
days. On January 27, 2000, defendants Del Labs and Pusey moved
to dismiss the complaint against Del Labs and Pusey on
insufficiency of service of process, among other grounds.
At the outset, the Court observes that the Amnay is proceeding
pro se in this action. As the Second Circuit has cautioned:
"[i]mplicit in the right to self representation is an obligation
on the part of the court to make reasonable allowances to
protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training."
Traguth v. Zuck, 710 F.2d 90, 95 (2nd Cir. 1983). However, the
Court is also mindful that such protection "does not exempt a
party from compliance with relevant rules of procedural and
substantive law," Traguth, 710 F.2d at 95, quoting Birl v.
Estelle, 660 F.2d 592, 593 (5th Cir. 1981), and that "ignorance
of the law, even in the context of pro se litigants, does not
constitute good cause [under Rule 4(m)]." Rivera v. Warden of
M.C.C., N.Y., 2000 WL 769206, *5 (S.D.N.Y. 2000), quoting
Charles v. New York City Police Dep't, 1999 WL 771406 (S.D.N.Y.
Fed.R.Civ.P. 4(m) provides that:
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court . . . shall dismiss the
action without prejudice as to that defendant or
direct that service be effected within a specified
time; provided that plaintiff shows good cause for
the failure, the court shall extend the time for
service for an appropriate period.
The Second Circuit interprets this provision to "require a
district court to dismiss an action where a plaintiff has failed
to serve a defendant within 120 days after the filing of the
complaint, unless the plaintiff can establish `good cause.'"
Armstrong v. Sears, 33 F.3d 182, 188 (2d Cir. 1994); ...