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Kalra v. City of New York

March 31, 2009

RITU KALRA, ET AL.; LINDSAY RYAN, ET AL.; ADRIENNE GARBINI, ET AL.; ADAM GREENWALD, ET AL.; BRIAN PICKETT, ET AL.; SACHA BOTBOL, ET AL.; EMILIA CROTTY, ET AL.; PLAINTIFFS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard J. Sullivan, District Judge

ORDER

On December 18, 2007, the Honorable James C. Francis, Magistrate Judge, issued an Order granting Plaintiffs' request for an extension of time in which to serve their Third Amended Complaints on nine individually named Defendants (the "December 2007 Order"). Before the Court are Defendants' objections to Magistrate Judge Francis's decision, as well as motions to dismiss by ten Defendants in the above-captioned actions for failure to effect service and establish personal jurisdiction.*fn1

For the reasons stated below, the December 2007 Order is affirmed, Defendants' motions are denied with respect to the nine Individual Defendants, and Defendant Martin's motion to dismiss the Crotty Plaintiffs' claims against him is granted.

I. Background

The seven above-captioned actions are part of a larger group of cases relating to protests surrounding the 2004 Republican National Convention (the "RNC Cases"), which have been consolidated before this Court and referred to Magistrate Judge Francis for general pretrial purposes. Plaintiffs in these actions were arrested by the New York Police Department (the "NYPD") during the RNC. The Court presumes the parties' familiarity with the facts and procedural history of these cases. Below, the Court recites only those facts necessary to the resolution of the instant objections and motions.

A. The Nine Individual Defendants*fn2

On February 4, 2005, Plaintiffs commenced the RNC cases by filing Complaints that contained claims under federal law. These Complaints named as Defendants the City of New York and fifty John and Jane Doe police officers.

Plaintiffs filed First Amended Complaints on August 26, 2005, which added claims against a new Defendant, the Hudson River Park Trust, and additional individual Defendants.*fn3 On November 2, 2005, Plaintiffs effected service upon the City of New York. On November 23, 2005, Plaintiffs filed Second Amended Complaints adding additional claims against the City of New York, the Hudson River Park Trust, and the individual Defendants.*fn4

On December 30, 2005, Corporation Counsel for the City of New York filed motions to dismiss the Second Amended Complaints in each of these respective actions - apparently on behalf of all Defendants - arguing that Plaintiffs had not timely effected service. Specifically, Defendants argued that the actions had been commenced on February 4, 2005, but that Plaintiffs had failed to serve the individually named Defendants and that Plaintiffs' service of the Amended Complaints on the City of New York was also untimely. See Bunim v. City of New York, No. 05 Civ. 1562 (KMK), 2006 WL 2056386, at *1 (S.D.N.Y. July 21, 2006).

By Opinion and Order dated July 21, 2006 (the "July 2006 Decision"), the Honorable Kenneth M. Karas, District Judge, to whom the RNC cases were previously assigned, partially granted Defendants' motion. See id. at *1. Although Judge Karas found that Plaintiffs had not demonstrated "good cause" under Rule 4(m) for their failure to serve Defendants within the prescribed 120-day period, he nevertheless exercised his discretion under the Rule to grant Plaintiffs an extension of time to do so. See id. at *3-4. He therefore held that Plaintiffs' service on the City of New York on November 2, 2005 was sufficient. See id. at *4 ("In considering the four factors outlined above, the Court finds that they weigh in favor of permitting all Plaintiffs, except Kerns and those Plaintiffs who have not yet filed Notices of Claim, an extension of time in which to have served process until November 2, 2005."). Judge Karas also noted that the individually named Defendants in these actions had not been served, id. at *1, and dismissed without prejudice Plaintiffs' state law claims against those Defendants, id. at *5. However, although Judge Karas distinguished between Plaintiffs' state and federal claims when analyzing the factors bearing on the exercise of his discretion under Rule 4(m), see id. at *3, he did not dismiss Plaintiffs' federal claims as to the City of New York or any of the individually named Defendants. Moreover, whereas Judge Karas held that Plaintiffs' November 2, 2005 service on the City of New York would be deemed timely, he did not set an express deadline by which Plaintiffs were to effect service on the individually named Defendants as to the remaining federal claims.

On August 13, 2007, Plaintiffs in six of the seven above-captioned actions - excluding Crotty, No. 05 Civ. 7577 - filed Third Amended Complaints. All of the RNC cases were subsequently reassigned to the undersigned on October 2, 2007. On November 13, 2007, Plaintiffs asked Defendants' counsel whether the NYPD Legal Bureau would accept service on behalf of individually named Defendants, including the nine Individual Defendants. Defendants' counsel apparently declined to accept service. On approximately November 28, 2007, Plaintiffs asked Defendants' counsel to consent to an extension of time in which to effect service, but the request was declined. Thus, on December 3, 2007, Plaintiffs filed with Magistrate Judge Francis a consolidated request for an extension of time to serve, inter alia, the nine Individual Defendants ("Plaintiffs' Application").

On December 18, 2007, Magistrate Judge Francis issued the December 2007 Order and found that "[t]he [November 13, 2007] inquiry by plaintiff's counsel a month before expiration of the period for service of the Third Amended Complaint was timely." Pursuant to Rule 4(m), Magistrate Judge Francis then extended Plaintiffs' time to serve the nine Individual Defendants until January 31, 2008.

B. Defendant Robert Martin

On May 4, 2007, the Crotty Plaintiffs filed a Third Amended Complaint naming Robert Martin as a Defendant for the first time in that action. More than 120 days later, in an October 28, 2007 letter to Magistrate Judge Francis, the Crotty Plaintiffs sought an extension of time in which to serve Defendant Martin. Magistrate Judge Francis denied Plaintiffs' request on November 27, 2007, finding that "[Plaintiffs' c]counsel has not demonstrated sufficient diligence to warrant the relief requested." No party filed timely objections to that ruling.

C. The Parties' Instant Submissions

On January 29, 2008, the nine Individual Defendants filed timely objections pursuant to Rule 72 regarding Magistrate Judge Francis's decision in the December 2007 Order ("Defs.' Mem.").*fn5 The submission also included a motion to dismiss Plaintiffs' claims against the nine Individual Defendants, as well as a motion to dismiss the Crotty Plaintiffs' claims against Defendant Martin.

On March 7, 2008, Plaintiffs' counsel submitted a letter in opposition to Defendants' objections and motions ("Plaintiffs' Letter"). Although Plaintiffs' Letter references the Crotty matter on the first page, the submission does not specifically address Magistrate Judge Francis's November 27, 2008 ...


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