United States District Court, S.D. New York
May 17, 2004.
ATSI COMMUNICATIONS, INC., Plaintiff, -against- THE SHAAR FUND, LTD., et al, Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiff moves, pursuant to Fed.R.Civ.P. 4(m), for an extension
of time within which to serve defendant Sam Levinson. Levinson argues
that the motion in substance is for relief from the Court's previous
order of dismissal and therefore should be considered under Fed.R. Civ.
P. 60(b)(1). As the Court would deny relief even if the motion properly
were considered under Rule 4(m), it need not determine which rule
This action was commenced on October 31, 2002 by the filing of the
complaint, which named Levinson Capital Management, Inc. ("LCM") as a
defendant but not its alleged principal and the subject of this motion,
Sam Levinson. Mr. Levinson first was named in the amended complaint,
which was filed on March 17, 2003.
On March 18, 2003, plaintiff, with their consent, served the attorneys
for LCM and Levinson with a copy of the amended complaint. Due to an
oversight, they failed to deliver a summons addressed to Mr. Levinson.
On May 9, 2003, LCM and Levinson moved to dismiss the amended
complaint. Insofar as the motion was brought on Levinson's behalf, it
asserted, inter alia, that he never had been served with a summons. Had
plaintiff's counsel acted diligently, they could have mooted that branch
of the motion by serving Levinson with the summons at any time over
several weeks. But they did not.
About six weeks later, plaintiff filed its papers in opposition to the
Levinson motion. Its memorandum of law represented to the Court that it
would serve Mr. Levinson prior to the expiration of the 120-day period
established by FED. R. CIV. P. 4(m). But it did not do so. This was
another oversight or law office error.
On March 30, 2004, the Court granted the motions to dismiss of the
Levinson and Rose Glen defendants with leave to replead. The same order
granted Mr. Levinson's motion to dismiss as to him pursuant to Rule 4(m)
in light of plaintiff's failure to serve a summons upon him in the
fourteen months following his addition as a defendant. Discussion
Rule 4(m) provides that "the court shall extend the time" for service
beyond the 120-day period upon a showing of "good cause." Attorney error
or inadvertence does not constitute good cause.*fn1 Nonetheless,
district courts in appropriate circumstances may grant relief under the
rule notwithstanding the lack of good cause.*fn2 The question is whether
this is a fitting case in which to do so.
In a helpful opinion, Judge Casey observed that:
"Courts will consider whether (1) the defendant
had actual notice that the plaintiff had filed a
claim; (2) the defendant concealed a defect in
attempted service; (3) the defendant suffered
prejudice as a result of plaintiff's delay; and
(4) if the statute of limitations would bear the
But he made clear also that the plaintiff's diligence has an important
bearing and that the preference for resolving cases on the merits "does
not dictate . . . that every case that [otherwise] may be time-barred
will be given an extension."*fn4
Here, Levinson was well aware that plaintiff had filed a claim against
him. Although he did not conceal the defect in attempted service, he
would suffer no unfair prejudice as a result of the delay in service. Moreover, Levinson asserts, and plaintiff virtually
concedes, that the statute of limitations now has run on its claim
against Levinson personally, albeit not that against LCM. Thus, a number
of factors favor plaintiff. But they are not enough.
The defect in service was brought to plaintiff's attention on May 2003
when Levinson moved to dismiss the amended complaint. But plaintiff did
nothing to cure the defect. It then compounded the problem by
representing to the Court in June 2003 that it would effect service
before the end of the 120-day period, i.e., before early September 2003.
It failed to do that as well.
"[I]f the Rules are to mean anything, parties must diligently try to
follow them and courts must enforce them, even if that means that cases
must sometimes be finally determined on procedural grounds rather than on
their substantive merits."*fn5 Here, plaintiff's efforts to follow the
rules were grossly careless despite the deficiency being called to its
attention twice. Moreover, this is not a case in which a valuable claim
would be lost by compelling plaintiff to bear the burden of its own
negligence. Plaintiff still has its claim against LCM, which remains a
defendant in the action. Surely there has been no showing that LCM would
be unable to satisfy any judgment that might be rendered against it.
Finally, the Court observes, although it does not rely upon the point,
that this plaintiff has little claim on the favorable exercise of its
discretion in view of its prior misconduct in this and related
For the foregoing reasons, plaintiff's motion for an extension of time
within which to serve defendant Sam Levinson is denied.