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CZERNICKI v. LIEBERMAN

United States District Court, Eastern District of New York


March 3, 2003

PAVEL CZERNICKI, PLAINTIFF, AGAINST SPECIAL AGENT IRA LIEBERMAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: I. Leo Glasser, United States District Judge

MEMORANDUM & ORDER

On December 14, 2001, plaintiff filed the complaint in this action alleging violation of his Fourth and Fifth Amendment rights by numerous individuals, including three named INS agents. Those three, Special Agents Lieberman, Kizenko and Bartholomew, now move to dismiss the complaint for failure to effect timely service upon them under Federal Rule of Civil Procedure 4(m). Plaintiff cross-moves for an extension of the time to serve Agents Lieberman and Kizenko. Agent Bartholomew has never been served, and the motion to dismiss as against him is unopposed.

It is undisputed that proper service was not effected upon Agents Lieberman and Kizenko until May 30, 2002, beyond Rule 4(m)'s 120-day time limit. Their counsel admits, however, that the court is given discretion under Rule 4(m) to grant relief from this deadline even in the absence of good cause for the failure to serve earlier. Here, plaintiff made a good faith effort to timely serve the Agents, they received actual notice before the 120 days had run, the defendants were not prejudiced by the late service, and in the absence of relief plaintiff's claims would be barred by the statute of limitations. Their counsel offered no reason why the time to serve should not therefore be extended.

Finally, plaintiff's counsel has abandoned her claims concerning service upon the United States Attorney for the Eastern District of New York, and the United States Attorney General.

The Court therefore extends the time to serve Agents Lieberman and Kizenko, nunc pro tunc, until May 30, 2002, the date on which they were properly served. The motion to dismiss as against them is denied. The motion to dismiss as against Agent Bartholomew is granted.

SO ORDERED.

20030303

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