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Mark Bernstein, Individually and As Parent and Natural Guardian of v. the Village of Piermont

December 20, 2012

MARK BERNSTEIN, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF A.B., AN INFANT UNDER THE AGE OF 17 YEARS, PLAINTIFF,
v.
THE VILLAGE OF PIERMONT, MICHAEL BETTMAN, DANNY GOSWICK, JR. AND SAM KROPP, DEFENDANTS.



The opinion of the court was delivered by: Edgardo Ramos, U.S.D.J.

OPINION AND ORDER

Plaintiff Mark Bernstein, individually and as parent of A.B., moves to extend the time for service required by Rule 4(m) of the Federal Rules of Civil Procedure ("Rule 4(m)"). Doc. 17. For the reasons discussed below, the Plaintiff's motion is GRANTED.

I.Procedural History

The Verified Complaint filed on May 31, 2011 sets forth a civil rights action pursuant to 42 U.S.C. § 1983 ("Section 1983") against the Village of Piermont (the "Village") and Michael Bettman ("Bettman"), Danny Goswick, Jr. ("Goswick") and Sam Kropp ("Kropp"), volunteer firefighters with the Village Fire Department (the "Individual Defendants") (collectively, the "Defendants"), alleging false imprisonment, unlawful detention, assault, battery and intentional infliction of emotional distress. The claims asserted in the Verified Complaint relate to an incident that occurred on August 14, 2010 in connection with A.B.'s service as a volunteer firefighter with the Village Fire Department. Doc. 1; Gilbert Aff., ¶ 21. On June 2, 2011, Plaintiff served the Defendants by personal delivery of the Summons and Verified Complaint on the Village Town Clerk ("Village Clerk"). Gilbert Aff., Ex. B at 1-4. On June 6, 2011, Plaintiff mailed copies to the Individual Defendants at the Village Clerk's Office. Id.

On June 10, 2011, Plaintiff filed an Amended Complaint. Gilbert Aff., Ex. C. The Amended Complaint was also served on the Individual Defendants by personal delivery on the Village Clerk on June 22, 2011, and by mail to the Village Clerk on June 23, 2011. Doc. 3. On July 8, 2011, the Village filed an Answer to the Amended Complaint, but did not interpose an answer on behalf of the Individual Defendants. Doc. 5. To date, the Individual Defendants have not filed answers to the Amended Complaint.

On June 27, 2011, Gary L. Lipton, Esq., attorney for Kropp in a related criminal action, sent a letter to the Plaintiff's attorney. Gilbert Aff., Ex. G at 1.*fn1 As an initial matter, Mr. Lipton advised that he did not represent Kropp in the instant civil action. Id. He also indicated that Kropp had sent copies of the Summons and Complaint*fn2 to the Village, the Village Fire Department and to his homeowner's insurance company. Id. Finally, Mr. Lipton summarized a conversation on June 24, 2011 during which Plaintiff's counsel purportedly agreed to (1) grant Kropp an extension of time to answer and (2) refrain from seeking default judgment against Kropp as long as he secured legal representation. Id. However, by a letter dated July 7, 2011, Plaintiff's counsel contested these representations and stated, "I advised [Mr. Lipton] that I understood Mr. Kropp's problem in securing counsel and would not take a default against him without notifying [Mr. Lipton] in advance of my intention to do so." Gilbert Aff., Ex. H at 1. In his July 7 letter, Plaintiff's counsel also indicated that Kropp had until July 31, 2011 to secure counsel; otherwise Plaintiff would seek a default judgment. Id.

On July 29, 2011, Mr. Lipton requested a three to four week extension to answer the Amended Complaint. Gilbert Aff., Ex. I at 1. Plaintiff's counsel responded on September 12, 2011, stating that Kropp had been given "several months" to secure legal representation and Plaintiff's counsel would initiate the process of default judgment unless they received an answer to the Amended Complaint in the following ten days. Gilbert Aff., Ex. J at 1.

Meanwhile, on July 8, 2011, Goswick's home insurance carrier sent a letter to Goswick's home address stating that it had received documentation of the current lawsuit and that it would not provide him with coverage for any of the claims in the Verified Complaint. Gilbert Aff., Ex. L at 1-12.*fn3 Plaintiff's counsel was included in the letter as a carbon copy recipient, id. at 11, and confirmed receipt of the document. Gilbert Aff., ¶ 26.

On May 3, 2012, Plaintiff filed an Order to Show Cause for, inter alia, default judgment against the Individual Defendants. Doc. 10. On June 4, 2012, Goswick's counsel entered a limited notice of appearance, indicating that his representation was limited to contesting personal jurisdiction and defending the motion for default judgment on the basis of lack of personal jurisdiction. Doc. 13. That same day, Goswick's counsel contacted Plaintiff's counsel to contest the method of service on Goswick and indicated that they had previously spoken about the alleged error in service. Feerick, Jr. Aff., ¶ 9; Doc. 14, Ex. B at 3. Plaintiff has not refuted these allegations.

On June 5, 2012, Plaintiff and the Individual Defendantsappeared before the Court for a Show Cause hearing.*fn4 At the hearing, Goswick's counsel argued that service on the Individual Defendants through the Village Clerk was improper and was insufficient to assert personal jurisdiction over the Individual Defendants. Gilbert Aff., ¶ 17. The Court directed the Plaintiff to research whether the Individual Defendants had been properly served. The Plaintiff now acknowledges that service was improper as to the Individual Defendants. Gilbert Aff., ¶ 17.*fn5

On June 19, 2012, Plaintiff filed the instant motion to extend the time to serve the Individual Defendants pursuant to Rule 4(m). Doc. 17.*fn6 On June 20, 2012, Goswick's counsel filed an affidavit in opposition to Plaintiff's motion. Doc. 20. The Village filed an affirmation in limited opposition to Plaintiff's motion on June 25, 2012. Doc. 23. Neither Bettman nor Kropp have filed papers in opposition to the motion.

II.Applicable Law

Rule 4(m) governs the dismissal of actions for untimely service of process and extensions of time in which service may be effected. The rule provides that "[i]f a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). If the plaintiff demonstrates good cause for the failure, then the court must grant additional time to serve, but if the plaintiff does not demonstrate good cause, then the court has discretion to either grant additional time or to dismiss the action. Counter Terrorist Group U.S. v. New York Magazine, 374 F. App'x 233, 234-35 (2d Cir. 2010); Castro ...


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