The opinion of the court was delivered by: VITALIANO, D.J.
Plaintiff Nsiloji Glover brought this action against the City of New York, Raymond Festino, Luis Gutierrez, and Dominick Nasso, alleging that he had been the subject of an illegal search and seizure. The individually named defendants have now moved to dismiss the claims against them, pursuant to Fed. R. Civ. P. 12(b)(5), because they were not timely served. For the reasons set forth, their motions are granted.
Plaintiff initiated this action, pursuant to 42 U.S.C. § 1983, on November 29, 2005 by filing a complaint against the City of New York and individual defendants Raymond Festino, Luis Gutierrez, and Dominick Nasso. Given that the complaint was filed on November 29, 2005, plaintiff had 120 days, or until March 29, 2006, to perfect service of process against each defendant. See Fed R. Civ. P. 4(m).
Plaintiff timely served the City of New York on November 29, 2005. The City answered the complaint on February 21, 2006 and appeared at an initial conference before Magistrate Judge Robert M. Levy on April 12, 2006. At that conference, it became apparent that, although 120 days had run from the filing of the complaint, plaintiff had not attempted to serve the individual defendants. Plaintiff's counsel requested an extension of time to do so.
In attempting to justify his failure to serve the individual defendants within 120 days, plaintiff has offered two items of evidence. First, along with the summons and complaint, plaintiff's counsel had served the City with a cover letter requesting "the names and current employment addresses of the police officers involved in the incident." Second, plaintiff's counsel claims that in a subsequent phone conversation with counsel for the City, he again requested the individual defendants' addresses. Aff. of Matthew Flamm, dated Dec. 29, 2006, ¶ 28. Plaintiff does not claim that any other efforts were made within 120 days of the complaint being filed to obtain the addresses of, or otherwise serve, the individual defendants. Defense counsel contends that plaintiff could have, and should have, directly contacted the New York City Police Department to obtain the precinct addresses of the individual defendants, as plaintiff's counsel had apparently done so in prior cases.
Regardless of whether plaintiff's efforts to obtain the individual defendants' addresses were diligent, plaintiff was spared, as Magistrate Judge Levy provided him a second chance -- without further explanation on the record -- to serve the individual defendants by April 30, 2006. The minute entry from that conference states:
Individual defendants not served yet. City will provide addresses shortly, but Corporation Counsel will not represent individual defendants. Plaintiff and City will exchange initial discovery demands. Plaintiff shall serve individual defendants by 4/30/06.
Minute Entry of Apr. 12, 2006. On the very next day, the City complied with Magistrate Judge Levy's order by mailing the individual defendants' addresses to plaintiff. Plaintiff does not deny prompt receipt of this information; nor does he claim that, following receipt, he had insufficient time to meet the service deadline. Notwithstanding, plaintiff failed to comply. Service was effected upon defendant Luis Gutierrez on May 2, 2006, upon defendant Dominick Nasso on May 23, 2006, and upon defendant Raymond Festino on June 9, 2006. Plaintiff never sought an enlargement of time in which to serve defendants.
On August 17, 2006, the individual defendants informed Magistrate Judge Levy of their intention to move for dismissal of the claims against them because they were not timely served. After a pre-motion conference before the Court, the individual defendants moved for dismissal. Since the events giving rise to plaintiff's complaint occurred on February 5, 2003, and given that the parties' agree that the statute of limitations on those claims expired on February 6, 2006, the granting of the pending motions may permanently dispose of plaintiff's claims against the individual defendants.
Under Federal Rule of Civil Procedure 12(b)(5), a defendant may move to dismiss an action if service of process did not comply with Federal Rule of Civil Procedure 4(m). Rule 4(m) provides, in relevant part, that [i]f 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.
A plaintiff bears the burden of showing good cause for failing to timely serve the defendant. Bunim v. City of New York, No. 05-cv-1562, 2006 WL 2056386, at *2 (S.D.N.Y. Jul. 21, 2006); AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000). "Good cause means a valid reason for delay, such as the defendant's evading service." Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002). In assessing whether a plaintiff has made a showing of good cause, a court "should look to whether 'the plaintiff was diligent in making reasonable efforts to effect service, including but not limited to whether plaintiff moved under FRCP 6(b)' for an extension of time in which to serve the defendant." AIG Managed Mkt. Neutral Fund, 197 F.R.D. at 108 (quoting Gordon v. Hunt, 835 F.2d 452, 453 (2d Cir.1987)). An ...