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M.C. v. County of Westchester, New York

United States District Court, S.D. New York

February 21, 2018

M.C., Plaintiff,
v.
COUNTY OF WESTCHESTER, NEW YORK; WESTCHESTER MEDICAL CENTER; CHERYL ARCHBALD; IRMA W. COSGRIFF; ADA HAUNG; LAURAL SKELSON; GERMAINE JACQUETTE; MIRAL A. SUBHANI; SHERLITA AMLER; JOHN DOES #1 -#3; and JANE DOES #l-#3, Defendants.

          OPINION & ORDER

          NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE.

         Plaintiff M.C. bring this action against Defendants County of Westchester, New York; Westchester Medical Center; Cheryl Archbald; Irma W. Cosgriff; Ada Huang; Laural Skelson; Germaine Jacquette; Miral A. Subhani; and Sherlita Amler pursuant to 42 U.S.C. § 1983, alleging violations of his First, Fourth, and Fourteenth Amendment rights.

         Presently before the Court is Plaintiffs motion for an extension of time to serve Defendants Cherly Archbald, Ada Huang, Laural Skelson, Germaine Jacquette, and Sherlita Amler (collectively, the "DOH Defendants"), as well as the DOH Defendants' cross-motion to dismiss the Complaint for insufficient service. (ECF Nos. 44 & 49.) For the following reasons, Plaintiffs motion is GRANTED and the DOH Defendants' cross-motion is DENIED.

         BACKGROUND

         Plaintiff commenced the instant action by filing a Complaint on April 22, 2016. (ECF No. 1.) On July 18, 2016, Notices of Appearance for Plaintiff were filed by attorneys David Leibowitz and Elizabeth Saylor. (ECF Nos. 4 & 5.) Plaintiffs counsel subsequently retained AAA Attorney Service Co. of N.Y., Inc. ("AAA") to effect service of the Summons and Complaint in this action. (Decl. of Joseph Barnum in Supp. of Pl.'s Mot. for Ext. of Time to Serve Compl. ("Barnum Decl.") ¶ 2, ECF No. 46.) Counsel directed AAA to serve the DOH Defendants at the Westchester County Department of Health, 145 Huguenot Street, New Rochelle, NY 10801. (Id.) However, the process server assigned to the task, Joseph Barnum, informed Plaintiffs counsel that to his knowledge, service is not accepted directly at the individual Westchester County department offices. (Id. ¶ 3-5.) Instead, Mr. Barnum-who has been a process server in Westchester County since 1985-advised counsel that the Summons and Complaint in this case should be seived at the Westchester Law Department, which accepts service for the majority of Westchester County's departments. (Id. ¶ 5.)

         On July 19, 2016, Mr. Barnum served each of the DOH Defendants, along with Irma Cosgriff and the County of Westchester, at the County Attorney's office at 148 Martine Avenue in White Plains. (Id. ¶ 6.) Mr. Barnum advised an employee of the County Attorney's office, Donna Dixon, about the general nature of the papers being served and provided her the names of the DOH Defendants. (Id. ¶ 7-8.) Ms. Dixon noted the names of each Defendant, accepted the papers, and stamped Mr. Barnum's "job tickets." (Id.) Although she was told that several of the individuals being served were employees of the Department of Health, Ms. Dixon did not inform Mr. Barnum that she could not accept service on their behalf, nor did she object to the service in any way. (Id.) After serving the Summons and Complaint at the County Attorney's office, Mr. Barnum returned to AAA's office, made the required mailing of the papers he had just served by hand, and signed affidavits of service before a notary. (Id. at 9.)

         The affidavits of service signed by Mr. Barnum were electronically filed in this action on July 21, 2016, (ECF Nos. 7 12.) The affidavits indicate that service was made at the County of Westchester legal offices at 148 Martine Avenue in the City of White Plains.

         On August 8, 2016, Plaintiffs counsel learned that the DOH Defendants were contesting the propriety of service on the ground that the County Attorney's office is not their actual place of business, nor is the County Attorney authorized to accept service on their behalf. (Decl. of Elizabeth Saylor in Supp. of Pl.'s Mot. for Ext. of Time to Serve Compl. ("Saylor Decl.") ¶ 2 ECF No. 47.)

         Plaintiffs counsel reached out to opposing counsel later that day and inquired whether the DOH Defendants would consent to an extension of time to serve the Summons and Complaint. (Id. ¶ 3.) Over the following days, Plaintiffs counsel continued to follow-up with opposing counsel regarding the issue of service. (Id. ¶ 3-7.) After continued failed efforts to reach an agreement with opposing counsel, Plaintiff filed a letter-motion for an extension of time to serve the DOH Defendants on September 12, 2016. (ECF No. 30.)

         On September 15, 2016, this Court granted Plaintiff leave to file a motion seeking an extension of time to serve the DOH Defendants and set a briefing schedule. Plaintiff again tried to negotiate an agreement with opposing counsel regarding service, going as far as offering to dismiss any state law punitive damages claims if the DOH Defendants agreed to not contest service of process. (Saylor Decl. ¶ 11.) However, the negotiations were unavailing, and Plaintiff filed the instant motion for an extension of time to serve the Summons and Complaint on November 11, 2016. (ECF No. 44.) Defendants opposed Plaintiffs motion for an extension of time and cross-moved to dismiss the complaint for insufficient service pursuant to Federal Rule of Civil Procedure 12(b)(5). (ECF No. 49.)

         LEGAL STANDARDS

         Federal Rule of Civil Procedure 4(m) provides that "[i]f a defendant is not served within 90 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. . .." Fed. R. Civ. P 4(m). If, however, "the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id. (emphasis added). Moreover, even absent a showing of good cause, "a court has the discretion to grant an extension of time to serve the defendant." Hahn v. Office & Prof'l Employees Int'l Union, AFL-CIO, 107 F.Supp.3d 379, 382 (S.D.N.Y. 2015) (citing Zapata v. The City of New York, 502 F.3d 192, 196-197 (2d Cir. 2007)).

         Similarly, Rule 12(b)(5) provides for dismissal of a complaint for "insufficient service of process." Fed.R.Civ.P. 12(b)(5). Proper service of process in a federal action is governed by Rule 4(e) of the Federal Rules of Civil Procedure. Under Rule 4(e), service upon an individual within a judicial district of the United States may be completed by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the ...

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