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 ...