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Jon Consiglio and Crystal Perez v. Ward Trucking

September 27, 2012


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


This action, removed from the Supreme Court of the State of New York, County of Richmond, arises out of a motor vehicle accident that occurred on June 30, 2008 involving plaintiffs Jon Consiglio and Crystal Perez and defendant Ward Trucking, LLC, and an unnamed "John Doe." (Notice of Removal (Doc. No. 1).) Before the Court is defendant Ward Trucking's motion pursuant to Federal Rule of Civil Procedure 12(b)(5) to dismiss this action for failure to timely serve process. (Doc. No. 9.) Plaintiffs oppose dismissal. (Doc. No. 11.)

For the reasons below, defendant's motion to dismiss is DENIED. A federal summons shall issue, and plaintiffs are accorded 20 days from the date of the issuance of the federal summons to properly serve defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure.


Plaintiffs originally brought suit in the Supreme Court of the State of New York, County of Richmond with the filing of a state court complaint and purchase of an Index number on May 27, 2011. (Ex. A to Notice of Removal (Doc. No. 1-2) at 2.) According to plaintiffs, they "ha[d] been in contact with [d]efendant's insurance carrier since July 2008 and even held lengthy settlement discussions with [d]efendant's insurance carrier right up to the commencement of this action." (Pls.' Opp'n (Doc. No. 11) at ¶ 12.)

Service was effected on defendant Ward Trucking through the New York Secretary of State on November 15, 2011 (Ex. A to Notice of Removal (Doc. No. 1-2) at 11), and the summons and complaint were ultimately received by Ward Trucking on November 28, 2011 (Id. at 8--10). Defendant alleges, and plaintiffs do not dispute, that the applicable statute of limitations expired on June 30, 2011. (Def.'s Mot. to Dismiss (Doc. No. 9) at 2.)

On November 30, 2011, defendant filed a Request for Supplemental Demand pursuant to N.Y. C.P.L.R. 3017(c), seeking the amount of damages sought by plaintiffs.*fn1 (Ex. B to Notice of Removal (Doc. No. 1-3) at 2.) Plaintiffs replied on December 6, 2011 with their demand of $1 million each. (Ex. C to Notice of Removal (Doc. No. 1-4) at 2.)

Invoking this Court's diversity jurisdiction, defendant Ward Trucking removed the case to this Court on December 15, 2011.*fn2


Defendant now argues that plaintiffs properly effected service, but did not do so within the 120-day time limit imposed by N.Y. C.P.L.R. 306-b. As such, defendant maintains, this action must be dismissed as it is now barred by the three-year statute of limitations. Plaintiffs do not dispute that service was untimely under state law, and that the statute of limitations had run prior to service, but argue that they are entitled to an extension of their time to serve to cure their defective service pursuant to 28 U.S.C. § 1448 and Federal Rule of Civil Procedure 4(m). While it is clear that the Federal Rules of Civil Procedure govern cases after removal, Fed. R. Civ. P. 81(c); see 28

U.S.C. § 1448; G.G.G. Pizza, Inc. v. Domino's Pizza, Inc., 67 F. Supp. 2d 99, 100 (E.D.N.Y. 1999), removal does not automatically restart the clock for timely service or keep a district court from considering a plaintiff's previous delays in effecting service. See Osborne v. Sandoz Nutrition Corp., No. 95-1278, 1995 U.S. App. LEXIS 28008, at *3--5 (1st Cir. Oct. 6, 1995) (per curiam); Morton v. Meagher, 171 F. Supp. 2d 611, 615 (E.D. Va. 2001). Nor does it waive any Rule 12(b) defenses, including sufficiency of service. See Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 157 n.4 (2d Cir. 1996).*fn3

Rather, section 1448 of Title 28 accords a district court following removal the discretion to allow service to be completed or new process issued pursuant to Rule 4 "in the same manner as in cases originally filed in such district court" where "any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective." In turn, Rule 4(m) empowers a district court to extend the deadline for the service of a summons and complaint even without proof of good cause to excuse a plaintiff's service default. Zapata v. City of New York, 502 F.3d 192, 196--97 (2d Cir. 2007). In deciding whether to grant such an extension, or to dismiss, a court must weigh "the impact that a dismissal or extension would have on the parties." Id. at 197; Harper v. City of New York, No. 09-CV-05571, 2010 U.S. Dist. LEXIS 122184, at *32--33 (E.D.N.Y. Nov. 17, 2010) (holding that the district court does not abuse its discretion so long as it weighs the impact of dismissal or extension on the record). In so doing, courts have considered factors such as the statute of limitations bar, the diligence of the plaintiff in attempting to serve, the prejudice to the defendant, and defendant's actual notice of the lawsuit. Efaw v. Williams, 473 F.3d 1038, 1040--41 (9th Cir. 2007), cited with approval in Zapata, 502 F.3d at 198 n.7.

Here, the balance of these factors weighs in favor of granting an extension of time to serve. On the one hand, while plaintiffs timely filed this action, they made no effort to serve within the 120-day period required by state law, nor have they offered any excuse for their delay. See Zapata, 502 F.3d at 197--99; Harper, 2010 WL 4788016, at *9--10. Nor did they request an extension of their time to serve until faced with the necessity of opposing defendant's motion to dismiss. However, plaintiffs undoubtedly face substantial prejudice should this action be dismissed as their claims would be extinguished by the statute of limitations. See N.Y. C.P.L.R. 214; Hyowon Kim v. Cruz, 941 N.Y.S.2d 869, 869 (N.Y App. Div. 2012) (discussing three-year statute of limitations for personal injury actions).

On the other hand, defendant has asserted no prejudice other than its claim that it "had no notice of this action until it received the Summons and Complaint, no sooner than November 28, 2011, three years and five months after the subject accident." (Def.'s Mot. to Dismiss (Doc. No. 10) at 11.) While prejudice to a defendant certainly "arises from the necessity of defending an action after both the original service period and the statute of limitations have passed before service," Zapata, 502 F.3d at 198, defendant has not indicated, for example, that with that passage of time, it has lost any opportunity to secure necessary evidence or has otherwise been prejudiced in its ability to defend itself against this lawsuit. Indeed, the prejudice to this defendant has been mitigated by the fact that it has been on notice of the underlying incident and plaintiffs' claims for years preceding the commencement of the action through extensive settlement discussions between plaintiffs' counsel and defendant's insurer. Moreover, proper service was effected here less than two months after expiration of the 120-day window allowed by state law. While this lapse cannot be ...

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