The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Karen M. Bastedo ("Bastedo"), proceeding pro se, brings this action against the North Rose-Wolcott Central School District (the "District"), alleging discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq.
This action was commenced on March 22, 2010 (Dkt. #1). Plaintiff simultaneously filed a motion to proceed in forma pauperis, which was denied by order of the Hon. Michael A. Telesca on March 26, 2010 (Dkt. #3). On April 29, 2010, plaintiff moved for an order pursuant to Fed. R. Civ. Proc. 4(c)(3) authorizing service of the Summons and Complaint on the District by the United States Marshal Service (Dkt. #4). That motion was granted on July 27, 2010, by order of the Hon. William M. Skretny (Dkt. #5). On or about September 25, 2010, plaintiff mailed a copy of the Summons and Complaint, along with the necessary forms, fees and application documents for service, to the U.S. Marshals Service ("Marshals") (Dkt. #9 at 2). The Marshals effected service on the District by mail on or about October 1, 2010.
The District now moves for dismissal of this action pursuant to Fed. R. Civ. Proc 12(b)(5), on the grounds that it was not served with process within the 120-day period specified in Fed. R. Civ. Proc. 4(m). For the following reasons, that motion is denied, and plaintiff is afforded an extension of time to serve, retroactively. With such an extension, the prior service was timely, and the District is therefore directed to answer the Complaint.
Generally, where a litigant applies for in forma pauperis status, which confers the automatic right to service of process by U.S. Marshals, the 120-day time limit for service of process pursuant to Fed. R. Civ. Proc. 4(m) is tolled during the pendency of that motion. See Schweitzer v. Crofton, 2010 U.S. Dist. LEXIS 90656 at *23-*24 (E.D.N.Y. 2010) (collecting cases); Romand v. Zimmerman, 881 F. Supp. 806, 810-811 (N.D.N.Y. 1995) (a complaint is not considered properly filed until after the accompanying motion for in forma pauperis is decided). This case presents a somewhat novel situation, in that plaintiff's 120-day service period expired after her in forma pauperis application was denied, but during the time her motion for service by the U.S. Marshals, which was ultimately successful, was still pending. Plaintiff states that upon receipt of Judge Skretny's order, she called the district court in Buffalo, New York to inquire about her time to serve, and was mistakenly "informed that the prescribed 120-day period [for service] commenced upon the date of [Judge] Skretny's order." (Dkt. #9 at 2).
Judge Skretny's order (Dkt. #5) did not grant plaintiff additional time to serve her complaint, the time for which had already expired when the order was entered. However, assuming arguendo that plaintiff's motion pursuant to Fed. R. Civ. Proc. 4(c)(3) did not toll the 120-day period for service, and recognizing that a plaintiff's mere "inadvertence, neglect, or mistake" do not constitute excusable good cause for a failure of timely service, I nonetheless find that plaintiff is entitled to an extension of time to have served the District. See AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000).
"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 discrimination and retaliation claims were required to be brought in federal court, if at all, within 90 days of her agency "right to sue" letter, and therefore could not be reasserted in another action. See 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994).
The second factor also weighs in the plaintiff's favor. Having received service by mail on or about October 1, 2010 (which service was acknowledged in a return receipt executed by the District's School Business Administrator on or about November 8, 2010) and appeared in this action on October 27, 2010, the District is clearly on notice of this case. "In this regard, the 'core function' of service, that is, to supply notice of the legal action, has been satisfied." See Lumbermens Mut. Cas. Co., 2009 U.S. Dist. LEXIS 68658 at *11, quoting Henderson v. United States, 517 U.S. 654, 671 (1996).
The third factor, whether the defendant attempted to conceal the defect in service, is neutral. The District made no attempt to conceal any defect, but timely moved to dismiss the action on the grounds of the allegedly untimely service.
The final factor, whether the District will be prejudiced by an extension, weighs in favor of plaintiff. The District offers no evidence that it would be prejudiced if an extension is granted.
In light of the pertinent considerations, and the long-standing judicial preference for deciding cases upon their merits, Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988), I find that the District's motion to dismiss the Complaint for failure to timely effect service should be denied, ...