United States District Court, W.D. New York
CRAIG R. MacMILLAN, Plaintiff,
WEGMANS FOOD MARKET, INC., Defendant.
Heidi W. Feinberg, Esq., Rochester, NY., for Plaintiff.
Luke Wright, Esq., Harter, Secrest & Emery LLP, Rochester, NY., for Defendant.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This employment discrimination case is before the Court on a motion to dismiss pursuant to Federal Rules of Civil Procedure 4(m) and 12(b)(5) filed on August 21, 2014, by defendant Wegmans Food Market, Inc. ("Wegmans"), ECF No. 9. For the reasons stated below, the Court grants the application and dismisses the complaint for failure of service within the proper time limitations.
Plaintiff Craig R. MacMillan ("MacMillan") commenced this lawsuit on December 9, 2013, by filing a hand written pro se complaint using the Court's pro se form, and a contemporaneous motion for in forma pauperis. The complaint and motion were filed by MacMillan's counsel who did not sign the complaint. See Fed.R.Civ.P. 11(a) ("every pleading... must be signed by at least one attorney of record in the attorney's name...."). The complaint alleges employment discrimination under several theories all commencing on March 18, 2013, the date of his termination from Wegmans' employment. Compl. ¶ 7. The Court denied MacMillan's motion for in forma pauperis status in an order filed on December 23, 2013, ECF No. 5. Plaintiff paid the filing fee on January 21, 2014, ECF No. 6, and the Clerk issued a summons on February 14, 2014, ECF No. 7.
Wegmans filed its application to dismiss on August 25, 2014, asserting that it had not been properly served within the 120-day time limitation of Rule 4(m) and that "without any apparent good cause, colorable excuse, or request to the Court for an extension of time2013Plaintiff waited 235 days, until July 31, 2014, to serve Defendant with process." Wegmans' Mem. of Law 1.
In her affidavit in response to Wegmans' motion, MacMillan's counsel candidly admitted that she miscalculated the time for service by starting to count from the date the summons was issued, not the date the complaint was filed. Feinberg Decl. ¶ 9. Consequently, counsel thought she had until June 14, 2014, to serve Wegmans. Even with the miscalculation, counsel waited until May 2, 2014, to send Wegmans a "Notice of Lawsuit and Request for Waiver of Service of Summons." Feinberg Decl. Ex. A. Wegmans did not respond to the request for waiver, and MacMillan's counsel then arranged for personal service on July 31, 2014. Pursuant to Rule 4(m), service was due within 120 days of December 9, 2013, or by April 8, 2014.
STANDARDS OF LAW
Pursuant to Rule 4(m):
If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). A district court also has discretion to enlarge the 120-day period for service in the absence of good cause. Green v. Unwin, 563 Fed.Appx. 7 (2d Cir. Apr. 15, 2014) (citation omitted).
Pursuant to Rule 12(b)(5), a defendant may move to dismiss for a plaintiff's failure to comply with Federal Rule of Civil Procedure 4's requirements for service of process. In analyzing a motion under this section, the Court must look to the ...