United States District Court, W.D. New York
June 20, 2005.
DEBRA REESE, Plaintiff,
UNIVERSITY OF ROCHESTER, Defendant.
The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge
DECISION & ORDER
Plaintiff Debra Reese ("plaintiff") brings this action pursuant
to the American with Disabilities Act of 1990 and the New York
Human Rights Law, alleging that her former employer, the
University of Rochester ("defendant"), discriminated against her
on the basis of a perceived disability. Defendant now moves to
dismiss plaintiff's Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(5) for improper service, arguing that since
plaintiff failed to serve defendant in the time allotted by Rule
4(m) of the Federal Rules of Civil Procedure, her claims should
be dismissed without prejudice. Plaintiff admits that service
upon defendant was untimely, but contends that she has good cause
for the delay. For the reasons set forth below, defendant's
motion to dismiss is denied.
Plaintiff commenced this action by filing a complaint on March
22, 2004, alleging that defendant discriminated against her based
on a perceived disability. In May 2004, plaintiff's attorney, Donna Marianetti, delivered copies of the summons and complaint
to a process server for service upon defendant. During the next
several weeks, the process server hired by Ms. Marianetti
experienced several incidents which prevented him from effecting
service upon defendant, including a broken foot and emergency
surgery. Ms. Marianetti contacted the process server several
times throughout this period, and each time he assured her that
he would complete service by July 20, 2004, the date on which
plaintiff's 120 day time limit in which to serve defendant would
expire. Nonetheless, the process server informed her on July 22,
2004, that he had not effected timely service of process.
Defendant was not served with plaintiff's summons and complaint
until August 6, 2004; 137 days after the complaint was filed.
Rule 4(m) of he Federal Rules of Civil Procedure requires that
a plaintiff must serve a copy of the summons and complaint on all
defendants within 120 days of filing the complaint. FED.R.CIV.P.
4(m). Failure to do so may result in dismissal of the action.
However, a court may extend a plaintiff's time for service upon a
showing of good cause, or where it finds a discretionary
extension to be appropriate. FED.R.CIV.P. 4(m); Eastern
Refractories Company, Inc. v. Forty Eight Insulations, Inc.,
187 F.R.D. 503 (S.D.N.Y. 1999). Here, although plaintiff is unable to
establish good cause for her failure to timely serve defendant, I
find that she is entitled to a discretionary extension. "In order to establish good cause for failure to effect service
in a timely manner, a plaintiff must demonstrate that despite
diligent attempts, service could not be made due to exceptional
circumstances beyond his or her control." Spinale v. United
States, 2005 WL 659150, *3 (S.D.N.Y. 2005). Good cause will not
be found where, as is the case here, the omission is the product
of an attorney's inadvertence, neglect, mistake or misplaced
reliance. McGregor v. United States, 933 F.2dd 156, 160 (2d
Although plaintiff's attorney gave the summons and complaint to
the process server well before plaintiff's time to serve was due
to expire, as the deadline drew near, she failed to follow up to
ensure that they had been served. Indeed, she did not realize
that service had not been completed until two days after
plaintiff's time for service had expired. Ms. Marianetti's
misplaced reliance on the process server is insufficient to
demonstrate good cause which would warrant extending plaintiff's
time to serve defendant.
Nonetheless, a court may still extend a plaintiff's time for
service absent a demonstration of good cause. Sleigh v. Charlex,
Inc., 20004 WL 2126742, *5 (S.D.N.Y. 2004) (citing Eastern
Refractories Company, Inc., 187 F.R.D. at 506). Before so doing,
the court should consider whether: (1) any applicable statutes of
limitations would bar the action once refiled; (2) the defendant
had actual notice of the claims asserted in the complaint; (3)
defendant attempted to conceal the defect in service; and (4)
defendant would be prejudiced by extending plaintiff's time for service. Id. Based on the facts presently before me, plaintiff
is entitled to a discretionary extension.
First, if plaintiff's claims were dismissed, she would be
unable to maintain her action because the statute of limitations
under the ADA would have run. That fact alone may constitute
cause for a discretionary extension. See Johnson v. Fleet,
2005 WL 1353611, * 2 (D.Conn. 2005). Second, since plaintiff
served defendant a mere 17 days after her time to serve had
expired, defendant will suffer little, if any, prejudice as a
result of the delay in service. As such, I find that these
factors warrant a discretionary extension of time and hereby deem
plaintiff's service of the summons and complaint upon defendant
on August 6, 2004, as timely.
For the reasons set forth above, plaintiff is entitled to a
discretionary extension of time in which to serve defendant with
a copy of the summons and complaint. Accordingly, plaintiff's
service upon defendant on August 6, 2004 is hereby deemed timely
and defendant's motion to dismiss is denied.
ALL OF THE ABOVE IS SO ORDERED.
© 1992-2005 VersusLaw Inc.