nor CPLR § 311 authorizes service on corporations via mail.
Accordingly, this Court finds that Amnay's attempt to serve
Del Labs was insufficient under both Fed.R.Civ.P. 4(h) and CPLR
§ 311. Therefore, service was not made upon Del Labs within 120
days of filing the complaint under Rule 4(m).
3. As to extending the 120-day period of Rule 4(m)
Rule 4(m) does allow the court to forgive a failure to serve
within 120 days. See, Ocasio 86 F. Supp.2d at 376. In
considering whether to excuse a plaintiffs failure to serve the
summons within 120 days of filing the action, courts have
considered (i) whether the applicable statute of limitations
would bar the refilled action; (ii) whether the defendant had
actual notice of the claims asserted in the complaint; (iii)
whether the defendant had attempted to conceal the defect in
service; and (iv) whether the defendant would be prejudiced by
the granting of plaintiffs request for relief from the
provision. Tevdorachvili v. The Chase Manhattan Bank, 2000 WL
963471, *5 (E.D.N.Y. 2000), quoting Eastern Refractories Co. v.
Forty Eight Insulations, Inc., 187 F.R.D. 503, 506 (S.D.N.Y.
While this Court would be inclined to relieve the consequences
of the Plaintiffs failure to comply with Rule 4(m), it appears
such relief would nevertheless be moot. A plaintiff is required
to file a complaint in a Title VII action within 90 days of the
issuance of a right to sue letter by the EEOC.
42 U.S.C. § 2000e-5(f)(1). This 90-day requirement is in the nature of a
statute of limitations, and thus subject to tolling. Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127,
71 L.Ed.2d 234 (1982); Holmes v. National Broadcasting Corp.,
914 F. Supp. 1040, 1042 (S.D.N.Y. 1996). While the filing of a
complaint tolls a statute of limitations, failure to complete
service of the summons within 120 days as required by Rule 4(m)
ends the tolling period, and the statute of limitations once
again begins to run. See, Ocasio, 86 F. Supp.2d at 376, see
also, Frasca v. U.S., 921 F.2d 450, 453 (2d Cir. 1990).
Here, Amnay filed his complaint on September 27, 1999, 81 days
after receiving his right to sue letter. Therefore, at the time
he filed, he only had nine days remaining before the 90 day
statute of limitations for commencing a Title VII action
expired. Pursuant to Rule 4(m), the statute of limitations was
then tolled for the next 120 days, but resumed running on or
about January 25, 2000, after Amnay failed to complete service
on the Defendants. Nine days later, the 90 day statute of
limitations expired completely, barring any further action by
Amnay on his case. Because the Plaintiffs claims are now
untimely, granting the Plaintiff an extension of time to attempt
to serve Defendants would be futile.
Therefore, pursuant to Rule 4(m), due to Amnay's failure to
properly serve the Defendants, the Court lacks personal
jurisdiction over them and must dismiss the case pursuant to
Fed.R.Civ.P. 12(b)(2). See Gaines v. Gaston, 182 F.R.D. 430
(S.D.N.Y. 1998) (dismissing case for failure to serve a
complaint and summons properly despite the plaintiffs pro se
For the reasons stated above, the motions to dismiss action
for lack of personal jurisdiction under Rule 12(b)(2) by Del
Labs and Martha Pusey is hereby GRANTED. The complaint is
dismissed. The Clerk of the Court is directed to close this
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