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Killeen v. Cover-All Building Systems Inc.

United States District Court, Second Circuit

May 13, 2013

ALLITHEA E. KILLEEN, Plaintiff,
v.
COVER-ALL BUILDING SYSTEMS INC., COVER-ALL BUILDING SYSTEMS OF ONTARIO, INC., EASTERN COVER-ALL INC., COVER-ALL BUILDING SYSTEMS OF NEW YORK, INC., and BEN HOGERVORST Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

1. On February 3, 2010, Plaintiff Allithea E. Killeen filed a complaint against the above-captioned defendants. Plaintiff is proceeding pro se, but is a licensed attorney. A bankruptcy stay is in effect as to each defendant except Cover-All Building Systems of Ontario, Inc., Cover-All Building Systems of New York, Inc., and Ben Hogervorst. (Docket Nos. 3, 5.)

2. From the inception of this case, Plaintiff has failed to comply with this Court's Orders requiring her to properly serve the defendants. She failed to serve the defendants within 120 days of filing her complaint. (Docket No. 5.) This Court thereafter found good cause to extend Plaintiff's time to complete service until November 30, 2010. (Docket No. 5.) Plaintiff disregarded this Order entirely.

3. No action having been taken in the case, this Court issued a Notice Before Dismissal for Failure to Effect Service on January 14, 2011. (Docket No. 6.) That Notice required Plaintiff to show good cause for her failure to comply with this Court's previous Order to effectuate service by November 30, 2010. (Docket No. 6.) Plaintiff filed an affirmation in response on January 26, 2011. (Docket No. 7.) Based on that affirmation, this Court found good cause to permit the case to proceed, but specifically warned Plaintiff that "she must diligently prosecute this case." (Docket No. 8.) Despite that clear warning, Plaintiff did nothing for nearly seven months.

4. As a result of this inactivity, this Court issued a Notice Before Dismissal for Failure to Prosecute on August 12, 2011. (Docket No. 9.) Therein, this Court directed Plaintiff to file an affidavit by September 12, 2011, explaining why the case should not be dismissed. (Docket No. 9.) But instead of complying with that Order, Plaintiff filed a Motion for Entry of Default on September 12, 2011, yet failed to file any proof of service. (Docket No. 10.) This Court denied Plaintiff's motion and issued a Second Notice Before Dismissal for Failure to Prosecute, since Plaintiff had failed to comply with the first Notice. (Docket No. 12.) Plaintiff was directed to file an affidavit by October 31, 2011, explaining why the case should not be dismissed. (Docket No. 12.)

5. On October 31, 2011, Plaintiff filed an affirmation in response to this Court's Second Notice to Dismiss for Failure to Prosecute. (Docket No. 13.) Plaintiff's affirmation - despite this Court's clear directive - failed to explain why the case should not be dismissed. (Docket No. 14.) Consequently, this Court advised Plaintiff that her case would be dismissed for failure to prosecute on January 6, 2012, if she did not file an affidavit explaining why the case should not be dismissed and did not provide proper proof of service on the defendants. (Docket No. 14.)

6. On January 6, 2012, Plaintiff filed an affirmation explaining why this case should not be dismissed for failure to prosecute. (Docket No. 15.) Attached to that affirmation was what Plaintiff maintained was proof of proper service on the active defendants. (Docket No. 15, pp. 5-7.) Based on Plaintiff's representations, this Court issued an Order on January 31, 2012, directing the active defendants to answer or otherwise move against the complaint. (Docket No. 16.) Therein, this Court directed that its Order be sent to counsel for Ben Hogervorst, who Plaintiff maintained accepted service on behalf of Cover-All Building Systems of Ontario, Inc. and Cover-All Building Systems of New York, Inc. Contrary to Plaintiff's representations, however, Hogervorst did not accept service for anyone.

7. On February 13, 2012, counsel for Hogervorst sent this Court a letter explaining that Hogervorst is no longer affiliated with the defendants and did not accept service on their behalf. (Docket No. 18.) Attached to the letter was a signed declaration by Hogervorst to that effect. (Docket No. 18.)

8. Consequently, this Court determined on April 19, 2012, that Plaintiff had yet to properly serve Defendants Cover-All Building Systems of Ontario, Inc. and Cover-All Building Systems of New York, Inc., despite being afforded multiple opportunities to do so. (Docket No. 17.) Nonetheless, this Court afforded Plaintiff a final opportunity to complete service by June 1, 2012, or risk having her case dismissed for failure to prosecute. (Docket No. 17.) At Plaintiff's request, and continuing to afford Plaintiff every benefit of the doubt, this Court twice extended its "final" deadline - first until August 31, 2012, and then until October 15, 2012. (Docket Nos. 20, 22.)

9. Contrary to this Court's Order and two extensions, Plaintiff filed nothing on October 15, 2012. Instead, three days later, she filed an amended complaint adding Hogervorst as a defendant and an affirmation, wherein she again insists that she properly served the defendants, despite her clear failure to do so. (Docket Nos. 23, 24.) Plaintiff filed these submissions after the final deadline of October 15, 2012, imposed by this Court.

10. On December 5, 2012, counsel for Hogervorst sent this Court a letter, with a copy to Plaintiff, explaining the multiple deficiencies in Plaintiff's attempted service. The Clerk of Court will be directed to file the letter. Since October 18, 2012, and even since receipt of Hogervorst's letter in December 2012, Plaintiff has done nothing to perfect service or prosecute this case, which is now more than three years old.

11. Dismissal of this case against the active defendants is warranted pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:

[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for ...

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