Tuesday, July 17, 2007

Northern District of New York Explains Rule 4(m) Standards For Timely Service Re Plaintiff Proceeding In Forma Pauperis

Per Gonzalez v. L'Oreal USA, Inc., --- F.Supp.2d ----, 2007 WL 1572087 (N.D.N.Y. May 24, 2007) (NO. 1:05-CV-01618LEKDRH):

Defendant alleges that service of the Summons and Complaint was not effected with 120 days after the Complaint was filed, as required by Rule 4(m) of the Federal Rules of Civil Procedure . Deft's Mem. of Law (Dkt. No. 15, Attach.5) at 4. Failure to serve a defendant within 120 days is grounds for dismissal, absent a showing of good cause. Fed.R.Civ.P. 4(M); Romandette v. Wheetabix Co., Inc. 807 F.2d 309, 311 (2d Cir.1986). Defendant did not receive the Complaint and Summons until August 17, 2006, 231 days after the Complaint was filed on December 29, 2005. Deft's Mem. of Law (Dkt. No. 15, Attach 5) at 4. Because Plaintiff successfully applied to proceed in forma pauperis, the 120 day period is tolled while the in forma pauperis application is pending. Sidney v. Wilson, 228 F.R.D. 517, 523 (S.D.N.Y.2005). Plaintiff's in forma pauperis application, filed on December 29, 2005, was granted on January 31, 2006; accordingly, to be timely, service had to be effected by May 31, 2006, 78 days before service was finally made.

Plaintiffs employed the United States Marshal's Service to serve process on Defendant. If a pro se plaintiff has made sufficiently diligent efforts to have the United States Marshal's Service serve a defendant within the relevant time period, then there is good cause for the plaintiff's failure to timely serve process. See Romandette, 807 F.2d at 311. In this case, Plaintiffs have not shown sufficiently diligent efforts to ensure that the service was effected. Plaintiffs originally provided the United States Marshal's Service with an incorrect address to serve Defendants. Process Receipt and Return (Dkt. No. 20, Ex. A). The United States Marshal's Service notified Plaintiffs on March 3, 2006 that service could not be effected at that address. Id. However, Plaintiffs did not provide the United States Marshal's Service with an alternate address under May 26, 2006, almost three (3) full months later. Letter (Dkt. No. 23, Ex. C). Although plaintiffs proceeding in forma pauperis are entitled to rely upon the United States Marshal to effect service, that reliance is not absolute; plaintiffs always retain the obligation to provide the process servers with the necessary information and to generally make diligent efforts. Because Plaintiffs did not meet this standard, the Complaint is subject to dismissal without prejudice.


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