221 F. Supp. 3d 428
S.D.N.Y.2016Background
- Plaintiff Saju George worked at PDI for 17 years and alleges race-, national-origin-, and age-based discrimination and a constructive-termination “plot” involving supervisors Pennella, Zocalli, and Amarillo.
- George filed an Amended Complaint on December 22, 2015 adding the individual defendants; Rule 4(m) (90-day service) governed that filing but George did not effect timely service.
- Sheriff’s deputies delivered and mailed process to PDI’s Orangeburg facility on April 19, 2016; proofs of service were filed late (or not at all) and service was not completed within 90 days after filing the Amended Complaint.
- Magistrate Judge Moses recommended dismissal under Fed. R. Civ. P. 12(b)(5) for untimely service (alternatively, dismissal under 12(b)(6) of certain claims); George objected; District Judge Abrams adopted the Report and Recommendation.
- The Court found no good cause to excuse untimely service, declined to exercise its discretion to extend time, and denied defendants’ request for sanctions against plaintiff/counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of service under Fed. R. Civ. P. 4(m) / 12(b)(5) | George contended he made diligent efforts and sought nunc pro tunc relief to cure late service | Moving Defendants argued service was not completed within 90 days and proofs were untimely (or absent) under CPLR §308(2) | Dismissal under Rule 12(b)(5) granted: George failed to effect service within 90 days and did not show good cause |
| Good cause to extend service period (Rule 4(m)) | George relied on counsel’s filing difficulties, recent amendment to Rule 4(m), discovery schedule, and late issuance of summons | Defendants argued plaintiff’s excuses (attorney neglect, filing errors, delay in obtaining summons) do not constitute good cause | No good cause found; magistrate and district courts found plaintiff’s explanations insufficient |
| Court’s discretionary authority to excuse untimely service absent good cause | George asked the Court to exercise discretion to permit service nunc pro tunc because some NYHRL claims might time-bar if refiled | Defendants asserted prejudice (fact discovery closed, inability to participate) and lack of actual notice; they moved to dismiss | Court exercised discretion against George: balancing DeLuca factors (statute-of-limitations, actual notice, concealment, prejudice) favored dismissal |
| Merit / alternative 12(b)(6) challenges and sanctions | George sought to avoid dismissal and asked to withdraw certain claims; objected to R&R | Defendants alternatively argued specific claims fail as a matter of law and requested sanctions for frivolous objections | District court dismissed the Amended Complaint without prejudice as to the three individuals under 12(b)(5); denied sanctions (no clear showing of bad faith). Court also noted ADEA individual liability and several NYHRL individual-liability defects if 12(b)(6) reached. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim for relief)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for disparate treatment claims)
- Zapata v. City of New York, 502 F.3d 192 (2d Cir. 2007) (district courts’ discretion to extend service time absent good cause)
- DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54 (S.D.N.Y. 2010) (factors for discretionary extension under Rule 4(m))
- Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) (aiding-and-abetting and employer-liability standards under NY law)
- Patrowich v. Chemical Bank, 63 N.Y.2d 541 (1984) (economic-reality test for individual employer liability under NYHRL)
- Sherlock v. Montefiore Med. Ctr., 84 F.3d 522 (2d Cir. 1996) (ADEA filing and right-to-sue timing requirements)
- Brown v. Colvin, 73 F. Supp. 3d 193 (S.D.N.Y. 2014) (standard of review for magistrate judge recommendations)
- Cassano v. Altshuler, 186 F. Supp. 3d 318 (S.D.N.Y. 2016) (Rule 12(b)(5) inquiry and looking to matters outside the complaint)