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AMNAY v. DEL LABS

September 4, 2000

IVAN AMNAY, PLAINTIFF,
V.
DEL LABS, MARTHA PUSEY, AND DOES 1-10, DEFENDANTS.



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.

BACKGROUND

In May 1983, Amnay, an African — American, was hired by Del Labs and remained employed there until June 1986, when he voluntarily left to pursue a career in the restaurant business. In October 1994, Del Labs rehired him and assigned him to work in its accounting department. In January 1998, Del Labs transferred Amnay to its Uniondale office and reassigned him to the purchasing department where he was placed under the supervision of Pusey, who is white.

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 and complaint.

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.

DISCUSSION

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. 1999).

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); ...


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