CONNIE S. GIBBS, Plaintiff,
IMAGIMED, LLC d/b/a OPEN MRI OF WILLIAMSPORT (PA), WILLIAM WOLF, M.D., andJOHNKENNY, Defendants.
OPINION AND ORDER
EDGARDO RAMOS, District Judge.
This action alleges sexual harassment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000(e), et. seq, and New York State Executive Law § 296(1)(a) ("NYSHRL"). Am. Compl., ¶¶ 17-27, Doc. 16. Defendant William Wolf, M.D. ("Dr. Wolf") now moves pursuant to Rules 12(b)(2) and (5) of the Federal Rules of Civil Procedure to dismiss the claims against him on the basis of Plaintiff's failure to comply with the timely service requirements of Rule 4(m). Doc. 38. For the reasons set forth below, Dr. Wolf's motion to dismiss is GRANTED.
I. Procedural History
Plaintiff Connie S. Gibbs ("Plaintiff") filed a Verified Complaint against her former employer, Imagimed, LLC, d/b/a Open MRI of Williamsport (PA) ("Imagimed"), and two managers of Imagimed, Dr. Wolf and John Kenny ("Kenny") (collectively "Defendants"), on May 2, 2011, alleging sexual harassment in the workplace in violation of Title VII. Doc. 1. On July 7, 2011, Dr. Wolf filed a motion to dismiss the Complaint for failure to state a claim. Doc. 6. In his motion, Dr. Wolf's then counsel, Scott M. Salant ("Salant"), noted in his affirmation that "[Dr.] Wolf has never been served with the Summons and Verified Complaint in this matter...." Doc. 8, ¶ 5. On July 27, 2011, Plaintiff filed an Amended Complaint asserting an additional claim for sexual harassment in violation of the NYSHRL. Doc. 16. On July 28, 2011, Judge Vincent L. Briccetti, to whom this case was previously assigned, dismissed Dr. Wolf's motion as moot after the filing of the Amended Complaint. Doc. 17. On August 8, 2011, Defendants Imagimed, Kenny and Dr. Wolf filed a Verified Answer to the Amended Complaint, which contained as a First Affirmative Defense that "Plaintiff never served her Summons, Verified Complaint, and Verified Amended Complaint upon [Dr.] Wolf." Doc. 18, ¶ 9.
On January 6, 2012, the case was reassigned to the undersigned. Doc. 24. On April 17, 2012, Plaintiff's counsel contacted Salant to schedule Dr. Wolf's deposition. Salant Declaration ("Salant Decl."), Doc. 40, ¶ 3. Salant responded by stating that Dr. Wolf had not been served and therefore was not a party to the case; he also requested proof that Plaintiff had effectuated service upon Dr. Wolf. Id. On May 16, 2012, Plaintiff and Dr. Wolf appeared before the Court for a status conference. According to Dr. Wolf's recollection of events, Plaintiff admitted that she had failed to serve Dr. Wolf. Id. ¶ 4. On September 6, 2012, at a status conference, Plaintiff admitted that Dr. Wolf had not been served. See id. ¶ 5. Finally, at a pre-motion conference on November 7, 2012, Plaintiff once again admitted that she had not undertaken any efforts to properly serve Dr. Wolf.
On November 14, 2012, Dr. Wolf filed the instant motion pursuant to Rules 12(b)(2) and (5) of the Federal Rules of Civil Procedure, asserting lack of personal jurisdiction and insufficient service of process, respectively, and seeking to dismiss the claims against him on the basis of Plaintiff's failure to comply with the timely service requirements of Rule 4(m). Doc. 38.
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.Appx. 233, 234-35 (2d Cir. 2010); Castro v. City of New York, 05 Civ. 593 (LAK) (MHD), 2007 WL 3071857, at *5 (S.D.N.Y. Oct. 10, 2007), report and recommendation adopted, 05 Civ. 0593 (LAK), 2007 WL 3224748 (S.D.N.Y. Nov. 1, 2007).
A. Mandatory Extension of Time for Good Cause
The first issue the Court must resolve is whether or not Plaintiff has shown good cause for her failure to serve Dr. Wolf within the 120-day limit. In determining whether a plaintiff has shown good cause, courts weigh the reasonableness and diligence of the plaintiff's efforts to serve against the prejudice to the unserved defendants from the delay. DeLuca v. AccessIT Group, 695 F.Supp.2d 54, 66 (S.D.N.Y. 2010). "Good cause is generally found only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control." Beauvoir v. U.S. Secret Serv., 234 F.R.D. 55, 56 (E.D.N.Y. 2006) (quoting E. Refractories Co. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999)) (internal quotation marks omitted). Thus, an attorney's "inadvertence, neglect, mistake or misplaced reliance does not constitute good cause." Id. (alteration and internal quotation marks omitted). Additionally, "a mistaken belief" that service was proper does not establish good cause. Jonas v. Citibank, N.A., 414 F.Supp.2d 411, 416 (S.D.N.Y. 2006) (citation omitted).
Plaintiff's counsel here has not demonstrated good cause for his failure to properly serve Dr. Wolf. As an explanation for his failure to properly serve Dr. Wolf, Plaintiff's counsel explains that he "had to give up his office and practice at home because of ill health of his wife, " who was suffering from a heart condition, and he had to take care of his two teenage daughters. Pl.'s Opp. Mem. 2. Further, he notes that "[w]hile these problems may not rise to the level of good cause' legally, nevertheless the cause of a spouse suffering from [a] heart problem and the care of two teenage daughters weigh heavily upon one who has that problem cast upon him." Id. Accordingly, Plaintiff's counsel argues that "[t]he problems of a missing Affidavit of Service could easily be forgotten, as they were, at these times of stress." Id. However, Plaintiff's counsel "has failed to explain why these circumstances precluded service from occurring during the allotted 120-day period." McGhee v. Delos Santos, 06-00014, 2006 WL 3804694, at *1 (D. Guam Dec. 22, 2006) (declining to find good cause where plaintiff made a bare assertion that her own personal illness and her need to care for her terminally ill mother was good cause for her failure to effect timely service). Absent such an explanation, the Court declines to find that good cause has been established. McGhee, 2006 WL 3804694, at *1 (citing Vannoni v. TSO, 120 F.R.D. 501, 503-04 (E.D. Pa. 1988) (declining to find good cause in light of illness of plaintiff's counsel when plaintiff "neither explained the nature of that illness nor how that illness contributed to an impossibility to make service, " and added that "an illness so serious as to prevent so unstrenuous an effort as service of a complaint should have prompted the plaintiffs' counsel to withdraw from representation so that the plaintiffs could secure counsel who would be in a position to represent their interests effectively.")); cf., LeMaster v. City of Winnemucca, 113 F.R.D. 37, 39 (D. Nev. 1986) (plaintiff's counsel's illness requiring chemotherapy and radiation treatments and hospitalization up to three days per week constituted good cause for 17-day delay in service).
Furthermore, the Court's records indicate that Plaintiff's counsel took no steps to request an extension of time to serve Dr. Wolf, even after he was put on notice of the service defect on six separate occasions, including notice in open court, over the course of sixteen months (July 2011, August 2011, April 2012, May 2012, September 2012 and November 2012). See generally Allianz Ins. Co. v. Otero, 01 Civ. 2598 (LMM) (HBP), 2003 WL 262335, at *4 (S.D.N.Y. Jan. 30, 2003) (failing to find good cause where plaintiff "never made a motion to extend the time for proper service within the original 120 days even though it was on notice of the service defect from the defendants' Answer.").
B. Discretionary Extension of Time
Even though Plaintiff has not shown good cause, it is still within the Court's discretion to grant an extension of time to accomplish service. Zapata v. City of New York, 502 F.3d 192, 193 (2d Cir. 2007) ("We join several other circuits and hold that district courts may exercise their discretion to grant extensions under Rule 4(m) absent a showing of good cause under certain circumstances."). In determining whether a discretionary extension is appropriate in the absence of good cause, courts in this Circuit generally consider four factors: "(1) whether any applicable statutes of limitations would bar the action once re-filed; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether ...