322 F. Supp. 3d 307
E.D.N.Y2018Background
- On March 8, 2013 Scott Tolchin (and nominally his wife Heidi) were involved in an altercation with off‑duty Detective Robin Archbold; Tolchin was later arrested and tried, and was acquitted on April 25, 2014.
- Plaintiffs filed a federal complaint on March 7, 2016; the Clerk rejected an initial proposed summons and the case then sat largely dormant for over 16 months.
- Counsel made multiple unsuccessful attempts to issue a corrected summons; a summons was finally issued by the Clerk on October 28, 2016 but service was not effected until July 28, 2017 after a court order to show cause.
- Defendants moved to dismiss under Rule 12(b)(5) for insufficient service pursuant to Rule 4(m) and under Rule 12(b)(6) for failure to state a claim; plaintiffs conceded their state claims were time‑barred and some municipal defendants were not suable.
- The district court found plaintiffs failed to show good cause for the delayed service, characterized the delays as law‑office failures (only one medical event offered), and declined to exercise discretion to extend time for service.
- The court granted the Rule 12(b)(5) motion and dismissed the federal claims without prejudice (though refile would likely be time‑barred); state claims were dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs showed good cause to extend Rule 4(m) service period | Counsel blamed staff oversight and an unexpected medical absence; promised expedited service after notice | Plaintiffs failed to diligently serve; long, unexplained delays and lack of supervision show no good cause | No good cause; extension denied |
| Whether court should exercise its discretionary power to extend time despite no good cause | Refile would be barred by statute of limitations; defendants had prior notice via Notice of Claim | Defendants argued prejudice from delay and lack of notice to individual Doe officers | Court declined to exercise discretion; dismissal granted |
| Whether state claims and certain municipal defendants are viable | Plaintiffs conceded state claims were time‑barred and municipal entities non‑suable | Defendants sought dismissal on those grounds | State claims dismissed with prejudice; municipal defendants dismissed |
| Whether court needed to address Rule 12(b)(6) merits after service issue resolved | Plaintiffs opposed merits dismissal | Defendants moved alternatively on merits | Court did not reach merits because Rule 12(b)(5) dismissal was dispositive |
Key Cases Cited
- Zapata v. City of New York, 502 F.3d 192 (2d Cir. 2007) (district court may grant discretionary extension under Rule 4(m) but is not required to do so)
- Bogle‑Assegai v. Connecticut, 470 F.3d 498 (2d Cir. 2006) (plaintiff must ordinarily advance a colorable excuse before vacating a Rule 4(m) dismissal)
- Vaher v. Town of Orangetown, N.Y., 916 F.Supp.2d 404 (S.D.N.Y. 2013) (good cause found only in exceptional circumstances beyond plaintiff's control)
- DeLuca v. AccessIT Group, Inc., 695 F.Supp.2d 54 (S.D.N.Y. 2010) (weigh diligence against prejudice in good‑cause analysis)
- Jordan v. Forfeiture Assocs., 928 F.Supp.2d 588 (E.D.N.Y. 2013) (factors for discretionary extension under Rule 4(m))