The opinion of the court was delivered by: William M. Skretny United States District Judge
On February 7, 2008, Plaintiff, a prisoner originally proceeding pro se, commenced this action by filing a complaint in this Court against Defendants. Plaintiff brought his claim pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his First, Eighth, and Fourteenth Amendment rights. Therafter, Plaintiff filed an amended complaint. In the amended complaint, Plaintiff adds two state law causes of action for assault and battery, which are brought pursuant to 28 U.S.C. § 1367.
Presently before this Court is Defendant's Motion to Dismiss the action in its entirety for insufficient service of process(Docket No. 6) and Plaintiff's Cross-Motion to Extend Time for Service. (Docket No. 12). For the following reasons, Plaintiff's cross-motion is granted and Defendants' motion is denied as moot.
On March 31, 2007, while in his cell at the Southport Correction Center, Plaintiff alleges that Defendants assaulted him. As a result of the alleged actions, Plaintiff, proceeding pro se, filed a complaint against Defendants on February 7, 2008. However, Plaintiff never served the Defendants.
On April 10, 2008, Tracie A. Sundack, Esq. filed a notice of appearance on behalf of Plaintiff, and on May 9, 2008, filed an amended complaint, adding two state law causes of action. (Docket No. 10, ¶¶ 4-5). Plaintiff's counsel mailed a copy of the amended summons to the Clerk's Office the same day. On May 28, 2008, amended summons were issued. Id. at ¶ 5. Thereafter, Plaintiff's counsel mailed the amended summons and complaint to her process server on June 12, 2008, with instructions to serve the individual Defendants. Id. at ¶ 6. On August 8, 2008, the process server mailed the amended summons and complaint to the individual Defendants at their place of business. Id. at ¶ 7. According to United States Postal Service records, the amended summons and complaints were delivered to the Southport Correctional Facility on August 12, 2008. Id. The process server also mailed affidavits of service to counsel's office. Counsel did not inspect the affidavits of service. Id. at ¶ 12.
As a result of her failure to inspect the affidavits of service, counsel was unaware that Defendants were only served by certified mail. Id. Counsel then attempted to make service on September 25, 2008. (Docket No. 13, ¶ 3). However, by September 25, 2008, 120-days had elapsed since the filing of the original complaint and the amended complaint.
On October 15, 2008, Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient and untimely service. Defendants contend that Plaintiff served them outside the 120-day time limit mandated by Rule 4(m) of the Federal Rules of Civil Procedure, and further, because Plaintiff only mailed them a copy of the summons and complaint, that Plaintiff did not effect service in accordance with the requirements of Rule 4(e). In response to Defendants' motion, this Court issued an Order directing Plaintiff to show cause why this action should not be dismissed without prejudice for Plaintiff's failure to effect service within the time limits specified by the Federal Rules of Civil Procedure. (Docket No. 8).
Pursuant to this Court's Order, Plaintiff filed a response wherein he concedes that he did not properly serve defendants, but argues there is good cause for his failure to do so. (Docket No. 10). Plaintiff contends that he made reasonable efforts to serve Defendants, and that Defendants have not been prejudiced by any delay in service.
Shortly after filing its response to this Court's Order, Plaintiff filed a Cross-Motion to Extend Time for Service. (Docket No. 12). In the supporting memorandum of law, which also serves as the memorandum of law opposing Defendant's Motion to Dismiss, Plaintiff argues that he demonstrates good cause for the same reasons previously set forth -- i.e, that he made reasonable efforts to serve Defendants and that Defendants have not been, and will not be prejudiced, by the delay. (Docket No. 11-4). Additionally, Plaintiff argues that even in the absence of good cause, this Court should grant him an extension of time to complete service as a matter of discretion.
In response to Plaintiff's cross-motion, Defendants do not argue against Plaintiff's assertion of good cause. Instead, Defendants contend that Plaintiff's cross-motion for an extension of time to serve them should be denied because the state ...