Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, Eastern District of New York

April 5, 2003


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


Defendant moves to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(5) for failure to effect service of process timely as required by Rule 4(m), pursuant to Rule 41(b) for failure to prosecute, and also pursuant to Rule 12(b)(6) for failure to state a claim with regard to state and city law claims that were already the subject of an administrative proceeding before the New York State Division of Human Rights. Plaintiff has not filed any opposition to the motion, despite the passing of many weeks since being served with the motion and after unfulfilled representations that plaintiffs counsel would agree shortly with defendant's counsel on a briefing schedule. On April 8, 2003, upon a request from counsel for defendants, this Court ordered that the motion would be deemed unopposed. For the reasons stated below, certain claims are dismissed with prejudice, and the remainder of the action is dismissed without prejudice.


Plaintiff (represented by counsel) initially filed a complaint against defendant, his former employer, on February 26, 2002, alleging employment discrimination based on violations of New York State Human Rights Law (NYHRL) and New York City Human Rights Law (CHRL). A summons was issued forthwith, but neither the summons nor complaint was served upon defendant. On June 14, 2002, plaintiff filed an amended complaint (adding claims under Title VII of the Civil Rights Act of 1964), although the amended complaint was not docketed until the following Monday. June 17. 2002.

Magistrate Judge Pollak issued a scheduling order on August 16, 2002, setting a status conference for October 10 and ordering plaintiff's counsel to notify defense counsel of the conference upon filing of an answer or to notify the court if no answer had been filed before the conference. On October 2, Judge Pollak issued an order directing plaintiff's counsel to file a status report by October 9. On October 10, counsel for plaintiff sent a letter to Judge Pollak stating that (i) he had received no notice of the August 16 order (apparently due to a change in address not reported timely to the court), (ii) the original summons and complaint had been served upon defendant at their office in Brooklyn, New York, although no affidavit of service has ever been filed in that regard, and (iii) that the amended complaint "was presently out for service," and also requesting permission to file a status report by November 19. 2002. (McLoughlin Aff., Ex. 8.) Judge Pollak granted the request. Plaintiff never filed a status report.

On February 5, 2003, plaintiff finally served the summons and amended complaint on defendant. 236 days after the amended complaint was filed and 118 days after counsel for plaintiff represented to Judge Pollak that the amended complaint was "out for service."

Meanwhile, probably because the return of service was not actually filed with the Clerk of Court until February 24. 2003, on February 12 Judge Pollak issued a report and recommendation that the action be dismissed for failure to prosecute. Plaintiff timely filed an objection on February 21, 2003. stating that service of the amended complaint had been effected earlier in the month, essentially mooting the basis for the report and recommendation. On February 25, 2003. defendant filed a notice of motion to dismiss the action. On March 12, a law clerk for this Court contacted defense counsel to determine if the parties had reached a briefing schedule (as this Court's Individual Practices require). Defendant's counsel had not heard from plaintiffs counsel. and on March 18, after unsuccessful efforts to reach plaintiff's counsel and set up a briefing schedule. defendant's counsel requested by letter that this Court consider the motion unopposed. Before the Court acted on that request, plaintiff's counsel contacted defense counsel and notified the Court that a briefing schedule would be negotiated shortly.

On April 8, however, defendant again wrote to the Court. In that letter, defendant noted that plaintiffs counsel had never sent a proposed briefing schedule and had failed to respond to defendants request dated March 20 for a such a proposal, and again requested that the motion be treated as unopposed. The Court granted defendant's request and the parties were notified of that Order.


Although defendant's motion is unopposed, given that the relief sought is dismissal with prejudice, the Court should undertake an independent inquiry to determine whether the motion has merit. See Seaweed, Inc. v. DMA Product & Design & Marketing LLC, 219 F. Supp.2d 551, 553 (S.D.N.Y. 2002).

I. Insufficiency of Service of Process

Rule 4(m) of the Federal Rules of Civil Procedure provides:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service an appropriate period.
Fed.R.Civ.P. 4(m) (emphasis supplied). Although counsel for plaintiff did assert in a letter to Judge Pollak that service of the first complaint was effected on defendant's local office in Brooklyn. plaintiff never filed any affidavit of such service as required by the Fed.R.Civ.P. 4(1). In this case. there is no dispute that over 230 days passed between the filing of the amended complaint and service on defendant, and plaintiff has made no effort to show why the failure of timely service should be excused.

Therefore this Court may either dismiss the action without prejudice or, even in the absence of good cause. order that the untimely service effected on February 5, 2003, be accepted. See Fed.R.Civ.P. 4(m), Adv. Comm. Notes to 1998 Amend. Courts have weighed a variety of factors in making this determination, including: "(1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint: (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiff's request for relief from the provision." Tevdorachvili v. Chase Manhattan Bank, 103 F. Supp.2d 632, 639 (E.D.N.Y. 2000). In this case, it is unclear that the statute of limitations would bar a new action, and the plaintiff has not indicated that such a bar would result. Based on the unopposed submissions, defendant did not have actual notice that plaintiff had filed the complaint. Defendant promptly filed its motion upon the completion of service. and there is nothing to indicate that defendant attempted to conceal any defects in service. Finally, although the prejudice to defendant might be slight, plaintiff has made no effort to seek any relief from the requirements of Rule 4(m). Accordingly, this Court exercises its discretion and will not deem the service of February 5, 2003 timely.

The action therefore may be dismissed without prejudice. Defendants seek, however, dismissal with prejudice, but Rule 4(m) does not provide such a remedy.*fn1 Accordingly, the Court will examine the other bases for defendants' motion.

II. Failure to Prosecute

Defendant next moves to dismiss the action with prejudice for failure to prosecute under Rule 41(b). "[A] Rule 41(b) dismissal remains a harsh remedy to be utilized only in extreme situations." LeSane v. Hall's Sec. Analyst. Inc., 239 F.3d 206. 209 (2d Cir. 2001) (internal quotations omitted). Although dismissal under Rule 41(b) is generally left to the discretion of the court. Theilmann v. Rutland Hospital, Inc., 455 F.2d 853. 855 (2d Cir. 1972) (per curiam), the Second Circuit has specified a number of factors that cabin this Court's discretion under that rule. These factors are:

[1] the duration of the plaintiffs failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has take[n] care to strik[e] the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard and [5] whether the judge has adequately assessed the efficacy of lesser sanctions.
Id. No single factor is dispositive. Id. at 210. A court need not discuss these factors, but the record will benefit from the reasoning of the Court. See id. at 209.

Duration of Failure. Plaintiff failed to respond to Judge Pollak's order dated August 16, 2002. Plaintiff later attributed this failure to a change of address but never notified the court of the address change. Plaintiff then untimely responded to Judge Pollak's order dated October 2. 2003. requiring a status report, and requested over five weeks in which to submit a status report regarding service. Although Judge Pollak freely granted this request, no report was ever filed and therefore the plaintiff's failure in this regard exceeds four months as of this date. Also, plaintiff has failed to respond timely to defendant's motion, requests to establish a briefing schedule, or to follow up on the representation on March 18 that a briefing schedule would be forthcoming.

On the other hand. when Judge Pollak issued a report and recommendation to dismiss the action for failure to prosecute. plaintiff did file a timely objection to that order in which he stated that service of the amended complaint had finally been effected.

Although plaintiff has failed to respond to court orders or to follow the rules of procedure. only one of these failures was of any significant duration (over four months and continuing) and certainly is of less duration than that typically found to warrant dismissal with prejudice. Accordingly, this factor only weighs slightly in favor of dismissal.

Notice of Consequences. Plaintiff has received notice previously that a failure to prosecute could result in dismissal. Indeed, the motion to dismiss is based upon that very ground. yet plaintiff has declined to oppose it. See Stoenescu v. Jablonsky, 162 F.R.D. 268, 271 (S.D.N.Y. 1995) (collecting cases holding that motion on notice to dismiss for failure to prosecute provides formal notice regarding effect). Accordingly, this factor weighs in favor of dismissal.

Prejudice to Defendant. "[P]rejudice to the defendant resulting from unreasonable delay may be presumed? LeSane. 239 F.2d at 210. However, where the delay is more moderate, the need to show actual prejudice is proportionally greater. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Since the action is not very old and the length of delay is not extreme, absent any affirmative showing of prejudice by defendant such as the loss or decay of evidence, the prejudice factor is neutral.

Effect on Court Docket. Although the impact that cases lingering on the court's docket without any prosecution can be severe, "there must be compelling evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated to the convenience of the court." LeSane, 239 F.3d at 210. No such evidence of an extreme effect on the court exists here, and therefore this factor weighs against dismissal.

Availability of Other Sanctions. Finally, other sanctions are available to remedy the dilatory conduct. The action will be dismissed in its entirety without prejudice. Moreover, as set forth below, a number of claims for relief fail to state a claim and are dismissed with prejudice. Counsel's unwillingness to respond to defendant's efforts to establish a briefing schedule, moreover, may have "multiplied" the proceedings unreasonably and vexatiously to warrant an award of excess costs and fees to defendant under 28 U.S.C. § 1927, and defendant may wish to consider if such a motion is warranted. Accordingly this factor weighs against dismissing all claims with prejudice.

Balancing these factors leads this Court to hold that it should not exercise its discretion to order "the harsh remedy of a Rule 41(b) dismissal." Giuliano v. Everything Yogurt, Inc., 152 F.R.D. 449. 454 (E.D.N.Y. 1994) (Glasser. J.).

III. Failure to State a Claim for the Violation of New York State and City Human Rights Laws
Under the New York Human Rights Law,

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights, . . . provided that, where the division [of human rights] has dismissed such complaint on the grounds of administrative convenience, such person shall maintain all rights to bring suit as if no complaint had been filed. . . . No person who has initiated any action in a court of competent jurisdiction or who has an action pending before any administrative agency under any other law of the state based upon an act which would be an unlawful discriminatory practice under this article. may file a complaint with respect to the same grievance under this section. . . .
N.Y. Exec. Law § 279(9). The New York City Human Rights Law ("CHRL"), N.Y.C. Admin. Code § 8-502. "provides a similar right. . . . [T]he language of the CHRL is nearly identical to that of § 279(9), and discussion of the latter applies equally to the former." York v. Assoc. of the Bar of the City of New York, 286 F.3d 122. 127 (2d Cir. 2002).

The first sentence of § 279(9) essentially permits a person to elect between two different tribunals to seek a remedy — either a court of competent jurisdiction or the state Division of Human Rights. "The New York Court of Appeals held in Emil v. Dewey, 49 N.Y.2d 968, 406 N.E.2d 744, 428 N.Y.S.2d 887 (1980) (mem.), that . . . when a party files a complaint with the Division of Human Rights regarding alleged discrimination, that party is thereafter barred from commencing an action' in court regarding that discrimination. . . ." Moodie v. Federal Reserve Bank, 58 F.3d 879. 882 (2d Cir. 1995).

Under the CHRL. a party also elects between remedies. but may file an administrative complaint either with the city Commission on Human Rights or the state Division of Human Rights. N.Y.C. Admin. Code § 8-502(a). If the CHRL claims arise from the same practice complained of to the State Division of Human Rights under the NYHRL, a plaintiff is "foreclosed from bringing either NYHRL or CHRL claims" to court even if the administrative complaint alleged violations only of the NYHRL. McNulty v. New York City Dep't of Finance, 45 F. Supp.2d 296. 303-04 (S.D.N.Y. 1999) (collecting cases).

Plaintiff filed an administrative complaint with the Division of Human Rights regarding the purported discrimination, which then proceeded to adjudicate the complaint on the merits. (McLoughlin Aff., Exs. 1 and 3.) Plaintiff is therefore barred from commencing any action under the NYHRL or CHRL regarding those complaints, and therefore counts one through eight are dismissed with prejudice.


Pursuant to Rule 12(b)(6) counts one through eight are dismissed with prejudice. Pursuant to Rules 12(b)(5) and 4(m), the remainder of the action is dismissed without prejudice. Defendant's motion to dismiss with prejudice pursuant to Rule 41(b) is denied.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.