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Mascoll v. Strumpf

March 31, 2009

JANET P. MASCOLL, PLAINTIFF,
v.
LINDA STRUMPF, ESQ., HAL SIEGEL AND BANK OF AMERICA AND SUBSIDIARIES, DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM and ORDER

In February 2005, plaintiff Janet P. Mascoll commenced this pro se action against Bank of America and certain unnamed "subsidiaries" (collectively, "BOA"), debt collector Linda Strumpf, Esq., and her employee and husband, Hal Siegel, alleging that defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, and New York General Business Law ("GBL") § 349 by persisting in attempts to collect a debt which BOA had previously determined was not actually owed.*fn1 In December 2005, defendant BOA moved to dismiss plaintiff's claims against it pursuant to Rule 4(m) of the Federal Rules of Civil Procedure on the ground that plaintiff failed to effect good service on BOA within 120 days of filing the complaint. By order dated August 25, 2006, this Court denied that motion and extended plaintiff's time to serve BOA to September 29, 2006, but warned plaintiff "that her failure to serve BOA on or before that date [would] result in dismissal of this action without prejudice...." Mascoll v. Strumpf, No. 05-CV-667 (SLT), slip op. at 9 (E.D.N.Y. Aug. 25, 2006).

Plaintiff has still not served BOA. Accordingly, FIA Card Services, N.A. -- the successor in interest to BOA -- now renews the motion to dismiss the claims against BOA without prejudice pursuant to Rule 4(m). For the reasons set forth below, this motion is granted and plaintiff's claims against BOA are dismissed without prejudice.

BACKGROUND

The early history of plaintiff's attempts to serve BOA with process in this action is described in detail in this Court's Memorandum and Order dated August 25, 2006 (the "Prior Memorandum and Order"). Although familiarity with the Prior Memorandum and Order is assumed, this Court will recount the salient portions of this history for the convenience of the reader.

Plaintiff commenced this action On February 3, 2005, by filing a fee-paid, pro se complaint in this Court. On February 24, 2005, Magistrate Judge Lois Bloom issued an order which, inter alia, directed plaintiff to serve the summons and complaint upon the defendants by June 6, 2005. The order quoted Rule 4(m) of the Federal Rules of Civil Procedure and specifically advised plaintiff that if she failed to either serve defendants by June 6, 2005, or show cause why service could not be effected by that date, Magistrate Judge Bloom would recommend that this Court dismiss the action without prejudice.

On May 25, 2005, one Edith S. Johnson personally served a copy of plaintiff's complaint and a summons on Barry Glickman, a Manhattan attorney who represented BOA. In April 2005, Glickman had a telephone conversation with plaintiff, in which he advised plaintiff that he was not authorized to accept service on behalf of BOA and "emphasized to plaintiff that she had not served [BOA] in accordance with the service requirements of the Federal Rules of Civil Procedure." Prior Memorandum and Order at 2. Despite this conversation, plaintiff served Glickman with another copy of the summons and complaint in late May 2005. Id.

On June 1, 2005, Glickman sent plaintiff a letter in which he again informed plaintiff that she had yet to effect service on BOA, stating, "it is clear that delivery of the complaint to us does not constitute good service." Declaration of Barry J. Glickman dated Dec. 21, 2005, Ex. E. However, plaintiff made no further attempts to serve BOA. Accordingly, in December 2005, BOA moved to dismiss plaintiff's claims against it, arguing that plaintiff had failed to effect good service within 120 days of filing the complaint and that Rule 4(m) mandated that this action be dismissed.

This Court denied that motion in the Prior Memorandum and Order and extended plaintiff's time to serve BOA to September 29, 2006. Although this Court held that plaintiff had not demonstrated good cause for her failure to serve process on BOA within 120 days of filing the complaint, this Court nonetheless exercised its discretion to extend plaintiff's time to serve BOA. In so doing, this Court was principally motivated by the realization that the one-year statute of limitations applicable to plaintiff's Fair Debt Collection Practices Act ("FDCPA") claim against defendant BOA might bar plaintiff from re-filing this action if it were dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m). Nonetheless, this Court warned plaintiff that it would dismiss her claims against BOA unless plaintiff served BOA on or before September 29, 2006. Prior Memorandum and Order at 9. To facilitate that service, this Court described the manner in which plaintiff could serve a corporation, id. at 4, and advised plaintiff to contact the Pro Se Office at the Brooklyn Courthouse if she had any procedural questions. Id. at 9.

Sometime during the month after this Court issued the Prior Memorandum and Order, plaintiff contacted the Pro Se Office. In her Opposition Memorandum of Points and Authorities, filed May 7, 2007 (the "Opposition Memo"), plaintiff implies that the Pro Se Office advised her that she could "either us[e] a process server or obtain[] a formal waiver from defendants' registered agent." Id. at 4. In addition, at a February 15, 2007, conference before Magistrate Judge Lois Bloom, plaintiff stated that the Pro Se Office had supplied her with a "waiver of service form." Transcript of Feb. 15, 2007, Conference at 4.

On September 20, 2006, plaintiff mailed two copies of the waiver form, along with the summons and complaint, to CT Corporation Systems -- BOA's registered agent in North Carolina. Opposition Memo at 4, Ex. IV. However, plaintiff never received an executed copy of the waiver. Although plaintiff claims she also consulted the North Carolina Secretary of State's website, plaintiff elected not to attempt service through the Secretary of State because "there was no guarantee... that they would be able to deliver the service by [September] 29th." Transcript of Feb. 15, 2007, Conference at 6. Plaintiff never requested an extension of time to effect service.

A few weeks after the February 15, 2007, conference -- at which plaintiff described her efforts to serve BOA -- Magistrate Judge Bloom granted BOA's application to renew its motion to dismiss. In April 2007, BOA's successor -- FIA Card Services, N.A. -- filed the instant motion pursuant to Fed. R. Civ. P. 4(h) and 4(m), which raises the same issues as BOA's first motion to dismiss. In response, plaintiff argues that there is "good cause" for extending her time to serve, because she "used reasonable efforts to effectuate proper service" and "reasonably waited for a response from CT Corporation." Opposition Memo at 5, 6. In addition, plaintiff notes that this Court can exercise its discretion to extend the time for service even in the absence of good cause, and urges the Court to follow the very same analysis which it used in its Prior Memorandum and Order.

DISCUSSION

Rule 4(m) of the Federal Rules of Civil Procedure ...


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