The opinion of the court was delivered by: David G. Larimer United States District Judge
In the words of famed American playwright Edward Albee, "[s]ometimes a person has to go a very long distance out of his way to come back a short distance correctly." Such is the case here, insofar as it concerns plaintiff's attempts to effect proper service upon certain individual defendants.
Plaintiff William A. Murray ("Murray"), proceeding pro se, brings this action against, among others, a number of employees of the New York State Department of Correctional Services ("DOCS defendants"). Murray alleges that while he was employed by DOCS as a substance abuse counselor, defendants subjected him to various forms of harassment and retaliation, in violation of his constitutional rights under the First and Fourteenth Amendments.
On September 15, 2010 (Dkt. #51), the Court denied, in relevant part, a motion by defendants (Dkt. #33) to dismiss the claims against the DOCS defendants in their official capacities pursuant to Fed. R. Civ. Proc. 12(b)(5) and (6), on the grounds that they had not been properly served in the manner required by N.Y. C.P.L.R. §307(2). Specifically, the Court found that in light of the pro se plaintiff's attempts to serve the defendants through mailings to the Commissioner, and a rebuffed attempt to personally serve them through an alleged designated agent for service, the plaintiff's failure to comply with the technical requirements of N.Y. C.P.L.R. §307 was excused.
The DOCS defendants now move for reconsideration of that Decision and Order (Dkt. #60). For the following reasons, that motion is granted, the defendants' motion to dismiss plaintiff's claims (Dkt. #33) is once again granted in part and denied in part,*fn1 and plaintiff is granted an extension of time in which to serve the individual defendants.
"Generally, motions for reconsideration are not granted unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Cioce v. County of Westchester, 128 Fed. Appx. 181, 185 (2d Cir. 2005). Thus, reconsideration is appropriate where necessary to correct for "clear error" or to "prevent manifest injustice," Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004), but should not be employed for the purpose of merely rearguing that which was previously decided. See Shrader v. CSX Tranp., 70 F.3d 255, 257 (2d Cir. 1995).
Initially, the DOCS defendants argue that the Court erroneously found that DOCS counsel Tom Goetz ("Goetz") was a designated agent for service on the defendants. Although defendants did not, on their initial motion, challenge or respond to plaintiff' contention that Goetz was a designated agent for service, defendants now offer evidence that Goetz had not, in fact, been so designated. It is not clear why this fact was not presented to the Court by defendants in their initial motion to dismiss.
Defendants contend that Goetz's refusal to accept the summonses tendered by plaintiff was not undertaken in bad faith, but merely because Goetz lacked any authority to accept service. Therefore, defendants urge, the Court erred in applying the provisions of N.Y. C.P.L.R. §307(2) which relate to service upon a state agency's designated agent, and in interpreting the provisions with respect to the extent to which service may be made upon a designated agent.
In the interest of justice, the Court has considered the new evidence and argument submitted by defendants, and the motion for reconsideration (Dkt. #60) is granted. The Court's September 15, 2010 Decision and Order is hereby vacated to the extent that the Court concluded that plaintiff's attempt to personally serve the individual DOCS defendants was excused by good cause. Rather, I find that plaintiff is entitled, pursuant to the provisions of Fed. R. Civ. Proc. 4(m), to an extension of time to properly effect service upon those individual defendants.
"A court can exercise its discretion in granting an extension without good cause, rather than dismissing the case for improper service, considering the following factors: '(1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by granting plaintiff's request for relief from the provision.'" Lumbermens Mut. Cas. Co. v. Dinow, 2009 U.S. Dist. LEXIS 68658 at *10-*12 (E.D.N.Y. 2009), quoting Kalra v. City of New York, 2009 U.S. Dist. LEXIS 28857 at *12 (S.D.N.Y. 2009).
Concerning the first factor, "courts have consistently considered the fact that the statute of limitations has run on a plaintiff's claim as a factor favoring the plaintiff in a Rule 4(m) analysis." Beauvoir v. United States Secret Service, 234 F.R.D. 55, 58 (E.D.N.Y. 2006)(internal citations and quotation marks omitted). Here, the plaintiff's claims of unconstitutional retaliation pursuant to the First and Fourteenth Amendment originate with his employment in 2004. As such, it is probable that if plaintiff were required to file his case anew, a number of his claims would be barred by the applicable three-year statute of limitations. See Young v. Strack, 2007 U.S. Dist. LEXIS 39771 at *9 (S.D.N.Y. 2007) (three-year statute of limitations applies to First Amendment retaliation and Fourteenth Amendment claims).
The second factor also weighs in the plaintiff's favor. As the Court noted in its September 15, 2010 Decision and Order, "the defendants are clearly on notice of this matter and the specific claims against them: each has appeared by counsel and either timely answered the complaint, or else moved to dismiss it in lieu of an answer." (Dkt. #51 at 6). "In this regard, the 'core function' of service, that is, to supply notice of the legal action, has been satisfied." See ...