United States District Court, S.D. New York
MEMORANDUM & ORDER
SON J. NATHAN, District Judge.
Plaintiff Michael Melendez seeks declaratory, injunctive, compensatory, and punitive relief for damages caused by the filing of an allegedly fraudulent pre-sentencing report in relation to his 1991 conviction for second degree murder and second degree criminal possession of a weapon. The Court now moves, sua sponte, to dismiss this action, with prejudice, for failure to serve the Defendants pursuant to Federal Rule of Civil Procedure 4(m) and for failure to prosecute under Federal Rule of Civil Procedure 41 (b).
I. PLAINTIFF HAS FAILED TO SERVE THE DEFENDANTS WITHIN 120 DAYS
On November 20, 2013, Plaintiff filed an amended complaint adding the County of Albany, the State of New York, and a large number of individual state employees as defendants (collectively the "State Defendants") in this action. See Dkt. No. 30.
Federal Rule of Civil Procedure 4(m) states 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."
Plaintiff has unmistakably failed to comply with this requirement. Despite the amended complaint being filed over a year ago, the additional State Defendants have not yet been served. Rule 4(m) plainly states that in such instances a court may, on its own motion, dismiss the complaint without prejudice so long as it has first given notice to the plaintiff. See Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) (vacating dismissal pursuant to Rule 4(m) where the plaintiff was not given notice). The Plaintiff here has been ordered to serve the State Defendants on multiple occasions, and similarly has been repeatedly warned that failure to do so Defendants first named in the amended complaint is dismissed.
II. PLAINTIFF HAS FAILED TO PROSECUTE HIS CASE
Plaintiff, proceeding pro se and in forma pauperis, first filed this action on December 17, 2012 against the City of New York, the New York City Department of Probation, and a large number of individual defendants (collectively the "City Defendants"). See Dkt. No. 2. On October 21, 2013, the City Defendants filed a motion to dismiss the complaint for, inter alia, being untimely and barred by various forms of immunity. See Dkt. No. 21. In response to this, Plaintiff filed an amended complaint, adding the State Defendants, on November 20, 2013. See Dkt. No. 30. This was the last time Plaintiff took any action in this case.
On December 19, 2013, the City Defendants filed a motion to dismiss the amended complaint. See Dkt. No. 35. Despite being granted an extended period to file an opposition, see Dkt. No. 40, Plaintiff never responded to this motion, which was ultimately granted on September 5, 2014, thus removing the City Defendants from the case. See Dkt. No. 47.
On September 9, 2014, the Court issued an order pursuant to 28 U.S.C § 1915(a), dismissing the Plaintiff's claim against the State of New York due to its immunity under the Eleventh Amendment and ordering the Plaintiff to effect service on the remaining State Defendants, warning that failure to do so would result in dismissal for failure to prosecute. See Dkt. No. 48. After failing to respond to this order, the Court issued another order to the Plaintiff on November 3, 2014, instructing him to provide service to the outstanding State Defendants in the case by November 28, 2014. See Dkt. No. 49. Again he was reminded that failure to comply would result in dismissal for failure to prosecute. Id. 
b. Legal Standard
Federal Rule of Civil Procedure 41 (b) provides that if a plaintiff "fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it" and that such a dismissal shall operate as an adjudication on the merits unless the Court states otherwise. Courts considering whether to grant a motion to dismiss for failure to prosecute have considered five factors:
(1) the plaintiffs failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiffs right ...