Cankat v. Little Morocco Restaurant Corp., 1:15-cv-03437

Plaintiff Jerry Cankat filed a complaint on June 12, 2015 in the EDNY; the pleading identifies Fredkiey Hurley as the plaintiff and 69 7th Avenue, Inc. d/b/a Bleecker St. Pizza as the defendant, not Cankat and Little Morocco Restaurant Corp.
The Civil Cover Sheet lists Jerry Cankat as the plaintiff and Little Morocco Restaurant Corp. as the defendant, creating a misalignment with the complaint.
The summons issued on June 12, 2015 was directed to 69 7th Avenue, Inc., and the time to serve expired on October 12, 2015 without action by the plaintiff.
The court ordered the plaintiff to show cause (May 16, 2016) why no affidavit of service was filed; plaintiff attributed the issue to a filing error but did not explain it and claimed an amended complaint would be served.
On May 27, 2016, plaintiff filed a purported Amended Complaint to Correct Defendants, which the court treated as a Motion to Amend; the court denied it due to material misalignment of parties and lack of proper relation to the original pleading.
Plaintiff repeatedly failed to prosecute: no timely status report or proper service was filed, and subsequent proposed amendments sought to add new parties and substantially alter the case rather than correct the original defects.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether leave to amend should be granted	Cankat seeks to correct defendant identity and proceed with proper service.	Amendment is improper, constitutes a new action, and would be futile and prejudicial due to delay and misjoinder.	Denial of the motion to amend; amendment futile and prejudicial.
Whether the action should be dismissed for failure to serve under Rule 4(m)	Service issues arose from filing error; plaintiff would correct and serve appropriately.	No service ever effectuated; more than 120 days elapsed without proper service (prior to 2015 rule change, still applicable), warranting dismissal.	Dismissal under Rule 4(m) with prejudice for failure to serve.
Whether the action should be dismissed for failure to prosecute under Rule 41(b)	Plaintiff had procedural obstacles and sought to move forward with amended pleading.	Repeated failures to comply with court directives and prolonged delay prejudice defendant and undermine process.	Dismissal with prejudice under Rule 41(b) for failure to prosecute and noncompliance.

LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206 (2d Cir. 2001) (Rule 41 dismissal factors used to assess prejudice and diligence)
Nita v. Conn. Dep’t of Envtl. Prot., 16 F.3d 482 (2d Cir. 1994) (multifactor analysis for dismissal and sanctions)
Kwan v. Schlein, 634 F.3d 224 (2d Cir. 2011) (Rule 41(a) and dismissal with prejudice considerations; prejudice from delay)