Friday, August 31, 2007

D. Conn. Denies Defendant's Motion to Dismiss; Grants Plaintiff's Motion to Extend Service Time Based on Excusable Neglect

Per Jackson v. Connecticut, --- F.R.D. ----, 2007 WL 2122013, (D.Conn., July 25, 2007) (NO. 3:06 CV 1274 JBA):

Rule 4(m) provides, inter alia, that if the plaintiff shows good cause for a failure to timely serve, an extension may be granted. While courts generally hold that "[a]n attorney's inadvertence, neglect, mistake or misplaced reliance does not constitute good cause for the purposes of the Rule 4(m)," see, e.g., Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y.1997), aff'd 173 F.3d 844 (2d Cir.1999) (citing McGregor v. United States, 933 F.2d 156, 160 (2d Cir.1991)), courts also suggest that " excusable neglect" can constitute good cause, see, e.g., Zankel v. United States, 921 F.2d 432, 435-36 (2d Cir.1990); McKibben v. Credit Lyonnais, No. 98civ3358 (LAP), 1999 WL 604883, at *2 (S.D.N.Y. Aug. 10, 1999).

In addition, this case is analogous to Zankel v. United States, where the Second Circuit held that failure to properly and timely serve the United States Attorney General did not warrant dismissal, where plaintiff's method of service suffered from a "technical defect." 921 F.2d at 436-38. Specifically, in Zankel, as it was a suit against the United States, the relevant Rule 4 provision required delivery of a copy of the summons and complaint to the United States attorney in the relevant district and mailing (via registered or certified service) of a copy of the summons and complaint to the United States Attorney General; the Circuit found that plaintiff's counsel had accomplished service as to the United States attorney, but that counsel did not attempt to serve the United States Attorney General until more than 120 days had passed. See id. at 434-35. In reversing the district court's dismissal of the complaint pursuant to Rule 4, the Circuit relied on the "technical defect" exception to the provision regarding service on the United States as articulated in a District of Columbia Circuit case, applying the following factors: "If (1) necessary parties in the government have actual notice of a suit; (2) the government suffers no prejudice from a technical defect in service; (3) there is a justifiable excuse for the failure to serve properly; and (4) the plaintiff would be severely prejudiced if the complaint were dismissed." Id. at 436-37 (citing Jordan v. United States, 694 F.2d 833, 836 (D.C.Cir.1982)).

While this case concerns suit against a Connecticut agency, not the United States, and thus a different Rule 4 provision for method of service applies, it is certainly analogous to Zankel (i.e., a suit against a Government entity and a technical defect in the specific method of service required for that entity). And, in this case, plaintiff satisfies the four factors: his counsel represents that the Connecticut Attorney General's office had notice of the suit, as a copy of the summons and complaint was mailed to the Office and she confirmed receipt with a telephone call, see Pl. Opp. at 1; the DOC has not identified any prejudice it will suffer if the suit is permitted to proceed; plaintiff's counsel has a justifiable excuse for her failure to timely properly serve, as already acknowledged by the Court's granting the Motion for Extension of Time, and as she attempted service and was unfamiliar with the Attorney General's service procedures; and plaintiff would be severely prejudiced if this case were dismissed as the statute of limitations has now run, see Pl. Opp. at 2-3. Plaintiff's counsel's justifiable excuse constitutes "excusable neglect," inasmuch as she attempted to serve the summons and complaint, followed up to confirm receipt, re-served, correctly, once informed of the defect, and also filed a Motion for Extension of Time, nunc pro tunc, which the Court granted.

Accordingly, defendant's Motion to Dismiss is DENIED.


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