The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Helen Dean ("Dean") has sought leave to file an
answer to the amended class action complaint of plaintiff Jon
Duquin ("Duquin") and moved to dismiss the amended class action
complaint on the grounds that it has not been filed. In addition,
defendants Gleen Goord, Edward Donnelly, Lieutenant Cook,
Lieutenant D'Amato, Steven Blask, Martin E. Nowak, Matthew Mann,
Charles Rizzo, Edward McEvoy, Roe, Edwin Mendez, Laurence Higley,
Kenneth L. Zydel, and Ann Webber (formerly Kurek) (collectively,
the "Defendants") have moved, pursuant to Rule 12 (b) (2) of the
Federal Rules of Civil Procedure, to dismiss the amended class
action complaint against them on the grounds that they have not
been served with process. For the reasons set forth below, Dean's
application is granted, her motion to dismiss having been
withdrawn, and Defendants' motion is also granted.
This action was originally filed by Duquin on November 5, 1998
in the Western District of New York. At the time, Duquin was a
deaf inmate at the Wende Correctional Facility. With the
exception of Commissioner Goord and Dean, Defendants are all
current or former employees of the Wende Correctional Facility. By order dated February 10, 1999, the court granted Duquin's
application to proceed in forma pauperis and counsel was
appointed for Duquin thereafter. On May 27, 1999, Duquin's
Buffalo, New York counsel moved for leave to file an amended
complaint. The proposed amended complaint was appended to
Duquin's motion papers.
On July 29, 1999, the Honorable Hugh B. Scott, Magistrate
Judge, granted Duquin's motion to amend at a scheduling
conference, indicating that Duquin would have 60 days for
service. On August 9, 1999 Judge Scott issued a formal order,
stating: "I hereby grant plaintiff's motion to amend the
complaint and authorize the United States Marshal to serve the
Summons and Complaint upon the additional defendants to this
action as named in the Amended Complaint." (August 9, 1999 Order,
attached as Exhibit C to the Affidavit of Julie Pechersky, sworn
to November 10, 2004.) Judge Scott's order was entered on the
court's docket on August 12, 1999. The docket contains no entry
indicating that an amended complaint was ever filed, nor does it
contain any entries indicating that service of the amended
complaint was effected as to Defendants.
On December 21, 1999, Duquin's action was transferred by the
Honorable William M. Skretny to this district and was referred to
this Court on December 29, 1999. On May 14, 2002, Dean moved to
dismiss or transfer the amended complaint for improper venue. The
motion was denied in October 2002 and Duquin's amended complaint deemed treated as a motion for contempt under this Court's
Consent Decree in Clarkson v. Goord, Case Number 91 Civ. 1792
(RWS). See Figueroa v. Dean, Nos. 99 Civ. 12457 (RWS) & 99
Civ. 12458 (RWS), 2002 WL 31426205, at *1, *4 (S.D.N.Y. Oct. 30,
On October 31, 2003, Dean was granted leave to move to dismiss
for lack of prosecution, as Duquin, who was at liberty at the
time, was not produced for deposition and his counsel has not
heard from him. No such motion was made.
On October 15, 2004, following assignment of a new assistant
attorney general to the matter, Defendants and Dean moved to
dismiss, and Dean sought leave to file an answer to the amended
complaint by a letter application on October 21, 2004. Duquin
submitted opposition to the motion to dismiss, and Dean withdrew
her motion to dismiss by a letter brief dated November 12, 2004.
Oral arguments were heard on the remaining motion and application
on November 17, 2004, at which time the motion and application
were deemed fully submitted.
Defendants' Motion To Dismiss Pursuant To Rule 12 (b) (2) Is
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 for an appropriate period. . . .
Fed.R.Civ.P. 4 (m). Defendants (with the exception of Dean)
assert that they have not been served with the amended complaint
in this action, and eleven of the fourteen Defendants have
submitted affidavits attesting to the failure to serve process.
Defendants seek to dismiss the amended complaint on the grounds
of lack of personal jurisdiction.
Under Rule 12 (b) (2), Fed.R.Civ.P., a defendant may move to
dismiss when the court lacks personal jurisdiction over that
defendant. Fed.R.Civ.P. 12 (b) (2). The burden of establishing
personal jurisdiction lies with the party that is attempting to
assert that such jurisdiction exists. See Bank Brussels
Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779
, 784 (2d
Cir. 1999); Metro. Life Ins. Co. v. Robertson-Ceco Corp.,
84 F.3d 560, 566 (2d Cir. 1996). In the absence of an evidentiary
hearing, the plaintiff need only make a prima facie showing
through pleadings and supporting affidavits that the court
possesses personal jurisdiction over the defendant. See
Robinson v. Overseas Military Sales Corp., 21 F.3d 502
, 507 (2d
Cir. 1994). Where the 120-day period for service of process has expired and
service has not been effected, courts generally consider three
factors when weighing whether "good cause" exists under Rule 4(m)
sufficient to warrant an extension of time to serve a defendant.
These factors include,
(1) whether the delay in service was "the result of
mere inadvertence," or whether there has been a
"reasonable effort" to effect service[,] . . . (2)
prejudice to the defendant[,] . . . [and 3] whether
or not the plaintiff has moved under Fed.R.Civ.P.
6(b) for an enlargement of time in which to effect
Shuster v. Oppleman, No. 96 Civ. 1689 (JGK), 1999 WL 9845, at
*3 (S.D.N.Y. Jan. 11, 1999) (quoting Gordon v. Hunt,
116 F.R.D. 313, 319-21 (S.D.N.Y.), aff'd, 835 F.2d 452
(2d Cir. 1987))
(alterations in original); see also Echevarria v. Dep't of
Corr. Servs. of N.Y. City, 48 F.Supp.2d 388
, 392 (S.D.N.Y.
1999). No such good cause has been shown here.
Duquin does not dispute that Defendants were not served with
process after his motion for leave to amend his complaint was
granted.*fn1 Rather, he argues that the failure of the
United States Marshal to effectuate service upon Defendants is a
clerical error beyond Duquin's control and not grounds to dismiss
the amended complaint, as service was the responsibility of the court. Duquin
argues that Dean's counsel should be directed to accept service
on behalf of the remaining Defendants or that the United States
Marshal should be directed to serve Defendants at this time.
In support of his argument, Duquin cites a number of cases
where motions to dismiss for failure to serve the complaint of an
incarcerated plaintiff were denied and, on occasion, certain
alternate solutions adopted to ensure effectuation of service.
See, e.g., Romandette v. Weetabix, 807 F.2d 309, 311 (2d
Cir. 1986) (reversing the district court's dismissal of an
incarcerated plaintiff's complaint for failure to serve where the
plaintiff was proceeding pro se and relied upon the Marshal's
Service to effect service, explaining that "the interests of
justice, informed by a liberal interpretation of Rule 4, are best
served by allowing this litigant to rely on personal service,
albeit untimely, ultimately effected by the Marshal's Service");
Ellis v. Guarino, No. 03 Civ. 6562 (DAB) (AJP), 2004 WL
1879834, at *14 (S.D.N.Y. Aug. 24, 2004) (explaining that "a
pro se litigant is entitled to assistance from the district
court in effectuating service on a defendant" and directing that
the Attorney General assist the Marshal's Service in locating and
effectuating service upon certain defendants); Jones v.
Herbert, No. 02 Civ. 084E(F), 2004 WL 1202933, at *1 (W.D.N.Y.
May 27, 2004) (extending the time for a pro se inmate to
serve a defendant and observing that once a plaintiff is given
permission to proceed in forma pauperis, "it was the
Court's responsibility to effect service upon defendants"); Peterson v. Tomaselli, No. 02
Civ. 6352 (DC), 2003 WL 22213125, at *6 (S.D.N.Y. Sept. 29, 2003)
(noting that "[a]n incarcerated pro se litigant is entitled
to rely on service by the Marshal's Service," and that, "[u]nder
such circumstances, the rules concerning service of process are
construed liberally") (citation omitted); cf. Wright v.
Lewis, 76 F.3d 57, 59 (2d Cir. 1996) (explaining that, "[b]y
granting Wright leave to pursue his § 1983 claim in forma
pauperis, [the lower court] shifted the responsibility for
serving the complaint from Wright to the court. . . . [relieving
Wright] by his poverty of the responsibility for filing and
effecting service of his complaint") (internal footnote omitted).
As Duquin was represented by counsel from before the date that
the United States Marshal was directed to effect service until
more than 120 days thereafter (assuming, arguendo, that the
typical 120-day period applied with regard to service rather than
the 60-day period set by Judge Scott on July 29, 1999), these
authorities are inapposite. Although, like the inmates in the
cases cited, Duquin was an inmate granted leave to proceed in
forma pauperis, unlike those same plaintiffs, Duquin was
represented by counsel during the relevant time period. While
this fact does not necessarily relieve the court or the United
States Marshal of an obligation to effect service for Duquin, it
alters the consideration of what `reasonable efforts' might be
expected by Duquin with regard to effecting service, which
efforts might reasonably have included ascertaining whether service had been effected and, if
it had not been, seeking an enlargement of time and appropriate
directions to the United States Marshal to effect such service.
In other words, while excusable neglect or good cause may be
found in those "exceptional circumstances? where ...