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United States District Court, S.D. New York

December 7, 2004.

JON J. DUQUIN, individually and on behalf of all persons similarly situated, Plaintiffs,
GLENN GOORD, Commissioner of New York State Department of Correctional Services; EDWARD DONNELLY, Superintendent, HELEN DEAN, Deputy Superintendent for Programs; MR. COOK, Lieutenant; MR. AMATO, Lieutenant; MR. ZYDEL, Sergeant; MR. BLASK, Sergeant; MR. NOWAK, Corrections Officer; MR. MANN, Corrections Officer; MR. RIZZO, Corrections Officer; MR. MacEVOY, Corrections Officer; MS. ROE, Nurse Administrator, whose identity is as yet unknown; MR. MENADEZ, Corrections Officer; MR. HURLEY, Sergeant; and MR. KUREK, Supervisor of Education, Wende Correctional Facility, Defendants.

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 For the reasons set forth below, Dean's application is granted, her motion to dismiss having been withdrawn, and Defendants' motion is also granted.

  Prior Proceedings

  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, 2002).

  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 Granted

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

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 service.
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 ยง 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 the insufficiency of service results from circumstances beyond the plaintiff's control," Feingold v. Hankin, 269 F.Supp.2d 268, 276 (S.D.N.Y. 2003), it is not clear that here, where Duquin was represented by counsel, the "insufficiency of service" was actually due to circumstances beyond Duquin's control.

  No subsequent efforts appear to have been made to seek an enlargement of time to serve Defendants during the five years that followed. Moreover, even if Duquin's counsel's failure to ascertain whether service had been effected during the 120 days following amendment of the complaint were excusable neglect, it is apparent that there would be substantial prejudice to Defendants were service to be permitted and Defendants required to respond to Duquin's allegations at this time, i.e., more than five years after the amendment of the underlying complaint and at least that long since the alleged occurrence of the underlying events.

  In view of the foregoing discussion, Defendants' motion to dismiss for lack of personal jurisdiction is granted, good cause not having been shown such as would excuse the failure to serve Defendants. Dean's Application For Leave To File An Answer Is Granted

  Dean has applied for leave to file an answer to the amended complaint. According to Dean's counsel, Dean's answer in this action has either been overlooked, lost, or the answer may have not been filed at all, possibly as a consequence of the fact that Duquin's amended complaint was never formally filed. Dean asserts that there is no prejudice to Duquin from permitting Dean to file an answer at this time. As Duquin has not objected to Dean's application, the application for leave to file an answer, denominated an amended answer, is granted pursuant to Rule 15(a), Fed.R.Civ.P. Dean is directed to file an amended answer within twenty days of entry of this opinion and order.


  For the reasons set forth above, Defendants' motion to dismiss the amended complaint is granted, and the amended complaint is dismissed without prejudice as to all Defendants with the exception of Dean. Dean's application for leave to file an answer, denominated an amended answer, is granted, and she is directed to file an amended answer within twenty (20) days of entry of this opinion and order.

  It is so ordered.

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