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Romero v. City of New York

February 26, 2009

PILAR ROMERO, AS BIOLOGICAL MOTHER AND LAWFUL GUARDIAN OF JANE DOE, A MINOR, PLAINTIFFS,
v.
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, JULIO CESAR BENAVIDES, AND JACK ROE 1-10 AND JILL ROE 1-10, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION & ORDER

Plaintiff Pilar Romero brings this action as biological mother and legal guardian of plaintiff Jane Doe, a minor, against defendants Julio Caesar Benavides, individually and in his official capacity, the New York City Board of Education ("NYCBE"), the City of New York (the "City"), and unknown defendants Jack Roes and Jill Roes. Plaintiffs allege that (1) defendants engaged in sex discrimination against plaintiff Doe in violation of Title IX of the Education Amendments of 1972, Ch. 39, 86 Stat. 235, 20 U.S.C. §§ 1681 et seq. and the Civil Rights Restoration Act of 1987, 102 Stat. 28, 20 U.S.C. § 1687; (2) defendants deprived plaintiff Doe of her constitutional rights to equal protection of the laws and to privacy, in violation of 42 U.S.C. § 1983; (3) defendants intentionally inflicted emotional distress on plaintiffs; (4) defendants negligently inflicted emotional distress on plaintiffs; (5) defendants engaged in sexual harassment against plaintiff Doe in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296; (6) defendants, either themselves or through their employees, engaged in sexual assault and battery of a child against plaintiff Doe; and (7) defendants NYCBE and the City negligently hired defendant Benavides. Plaintiffs seek compensatory and punitive damages along with attorney fees and costs. Presently before this Court is defendant Benavides' motion to dismiss the claims against him for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), and plaintiffs' cross-motion for an extension of time extending plaintiffs' time to serve the Amended Complaint on defendant Benavides. For the reasons stated below, both defendant's and plaintiffs' motions are denied, but plaintiffs are nevertheless granted a discretionary, retroactive extension of time in which to serve defendant Benavides.

BACKGROUND

The following undisputed facts are drawn from the Amended Complaint and are not findings of fact by this Court. For the purposes of these motions, I assume them to be true.

Plaintiff Romero is the biological mother and legal guardian of plaintiff Doe, born on August 12, 1992. Am. Compl. ¶ 1. Plaintiff Doe at all times material to this action was a 14-year- old ninth-grade student attending Richmond Hill High School in Richmond Hill, Queens, New York. Id. Plaintiffs reside together in Brooklyn, New York. Id. Defendant Benavides at all times material to this action was employed as a ninth-grade math teacher at the Richmond Hill High School, and was an agent and employee of the NYCBE and the City of New York. Id. ¶ 2. Defendant NYCBE is a government department organized and managed under the laws of the City of New York and charged with the management and control of Richmond Hill High School. Id. ¶ 3.

On or about November 20, 2006, Defendant Benavides contacted plaintiff Doe and advised her that he was physically attracted to her. Id. ¶ 9. Over subsequent months, he proceeded to seduce her by offering her favors and promises of love and affection. Id. Defendant Benavides enticed plaintiff Doe on several occasions to allow him to kiss and fondle her sexually on the campus of the Richmond Hill High School both during and after regular school hours. Id. ¶ 10. He also enticed her on several occasions during regular school hours to accompany him to a private residence away from the campus of the Richmond Hill High School to engage in sexual intercourse and other carnal experiences. Id. ¶ 11. During this time, defendant Benavides knew that plaintiff Doe was a minor child incapable of giving her consent to any conduct of a sexual nature and knew that his position as her teacher at the Richmond Hill High School gave him certain authority conferred on him by the NYCBE and the City of New York, which he also knew gave him power and control over plaintiff Doe as a student. Id. ¶ 12.

At an unspecified point in time, employees and agents of the NYCBE, while acting in the capacity of their official duties, became aware of the fact that defendant Benavides was having a sexual relationship with plaintiff Doe. Id. ¶ 13. As a result, they commenced a formal investigation of the situation. Id. At no time before June 7, 2007 did any employee or agent of the NYCBE notify plaintiff Romero of the NYCBE's suspicions or findings regarding defendant Benavides, nor did any employee or agent of the NYCBE take any corrective action against defendant Benavides. Id.

At all times relevant to this action, neither the Richmond Hill High School nor the NYCBE had any student/grievance procedure in place for the lodging of sexual discrimination complaints that was made available to plaintiffs, nor did the School or the NYCBE publish, disseminate, or otherwise make available to plaintiffs Title IX Student/Grievance procedures for the lodging of sexual discrimination complaints. Id. ¶¶ 14-15.

It was not until June 7, 2007, that agents and employees of the NYCBE notified plaintiff Romero that defendant Benavides had been engaging in a ongoing sexual relationship with plaintiff Doe. Id. ¶ 17. This action followed on June 25, 2008.

DISCUSSION

Rule 12(b)(5) of the Federal Rules of Civil Procedure authorizes dismissal of a complaint for insufficient service of process, upon motion by a defendant made prior to the defendant's filing an answer in a case. Fed.R.Civ.P. 12(b)(5). When a defendant raises a challenge to the sufficiency of service of process, "the plaintiff bears the burden of proving its adequacy." Preston v. New York, 223 F.Supp.2d 452, 466 (S.D.N.Y. June 27, 2002).

Defendant contends that plaintiffs' service on him was inadequate because it was not effected within 120 days of the filing of the complaint, as required by Rule 4(m) of the Federal Rules of Civil Procedure. Rule 4(m) provides, in relevant part, as follows:

If a defendant is not served with 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). Plaintiffs do not dispute that service was effected on defendant 23 days after the 120-day limit prescribed by Rule 4(m). However, they ...


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