United States District Court, N.D. New York
SUSSMAN & WATKINS, Michael H. Sussman, Esq., Goshen, New York, Counsel for Plaintiff.
COOK NETTER CLOONAN KURTZ & MURPHY, P.C. Eric M. Kurtz, Esq., Kingston, New York, Counsel for Defendants Paulding, Robertson and Matthews.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
The complaint is filed pursuant to 42 U.S.C. § 1983. Dkt. No. 1. Plaintiff contends that he was beaten by a number of the defendant police officers after he peaceably surrendered. Previously, three of the defendants - Paulding, Robertson and Matthews - moved to dismiss the complaint based on, among other things, plaintiff's failure to serve the complaint in a timely fashion as required by Fed.R.Civ.P. 4(m). Dkt. No. 25. Although the Court granted a similar motion by defendants Short, Seyfarth and Haberski (Dkt. No. 21), the Court denied the motion by defendants Paulding, Robertson and Matthews because unlike defendants Short, Seyfarth and Haberski, who immediately filed a motion to dismiss in lieu of an answer, they filed an answer to the complaint, failed to raise the defense of insufficiency of service and actively participated in the litigation of this case for twenty one months. Dkt. No. 34. Presently before the Court is a motion for reconsideration by defendants Paulding, Robertson and Matthews. Dkt. No. 35.
FACTUAL AND PROCEDURAL BACKGROUND
In the Memorandum-Decision and Order denying defendants' motion to dismiss, the Court summarized the factual and procedural background as follows:
Plaintiff filed the present action on January 5, 2012, by filing a complaint. The Clerk of the Court issued summonses for the six named defendants on January 6, 2012. The Court also issued a General Order 25 scheduling order on January 6, 2012, which set the initial "Rule 16" scheduling telephone conference for June 27, 2012. Regarding service of process, the Court's General Order 25 scheduling order advises all parties:
Service of process should be completed within Sixty (60) days from the initial filing date. This expedited service is necessary to fulfill the dictates of the Civil Justice Reform Act Expense and Delay Reduction Plan of this court and to ensure adequate time for pretrial discovery and motion practice. However, in no event shall service of process be completed after the time specified in Fed.R.Civ.P. 4, or any other Rule or Statute which may govern service of process in a given action.
A legal secretary for plaintiff's counsel as well as the process server engaged for plaintiff's counsel have both submitted affidavits in opposition to defendants' motion acknowledging that service was not made in a timely manner. Neither of these individuals provides a particularly compelling excuse for tardy service of process other than they were "occupied with other assignments" and they were "unable to find good home addresses" for the defendants. There were no attempts made at service within the 120 day period and no requests for extensions or assistance from the Court once plaintiff's' counsel recognized he had completely missed the deadline for service due to his own error.
Dkt. No. 34.
Standard Of Review
The standard for granting a motion for reconsideration is "strict." Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995). A previous ruling will be reconsidered and vacated if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice. Delaney v. Selsky, 899 ...