United States District Court, S.D. New York
October 15, 2004.
REGINALD ATKINSON, Plaintiff,
GLENN S. GOORD, et al., Defendants.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Defendants move for reconsideration of certain aspects of the
Court's order of September 23, 2004, which granted in part and
denied in part their motion to dismiss. The motion for
reconsideration is granted. On reconsideration the Court adheres
to its original decision except that the matter is recommitted to
Magistrate Judge Pitman for consideration of the arguments for
dismissal that were not reached in the report and recommendation
and, in consequence, in this Court's decision. Def. Mem. 2-3.
Defendants' contention that the Court is not entitled to consider
a lack of prejudice to a defendant in deciding whether to dismiss
an otherwise time barred claim under Rule 4(m) is not well taken,
as the issue is addressed to the Court's discretion. The
qualified immunity argument made at pages 5-7 of their memorandum
is rejected for reasons stated in the Court's order of even date
in Atkinson v. Selsky, 03 Civ. 7759 (LAK).
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