234 F.R.D. 59 | S.D.N.Y. | 2005
MEMORANDUM AND ORDER
On July 26, the Court denied plaintiffs’ motion for the entry of default judgments against six defendants on the ground that no evidence of record indicated that a copy of the summons had been served on them. The Court ordered plaintiffs to show cause why the action should not be dismissed for failure to serve a summons. In their response, which was untimely, plaintiffs consent to dismissal of the complaint as against two of the defendants, Frank Zuchristian and Pecunix, Inc. They argue that service on the other four defendants — One Groupe International, Inc., OSGold.com, OSOpps.com, and David C. Reed (collectively “Core defendants”) — was effective or, in the alternative, that they should be afforded an opportunity to cure the defects in service.
Service of process in the federal system requires service of a summons, in the manner prescribed in Rule 4, together with a copy of the complaint.
Here, the deficiency in service did not involve a minor or technical failure, such as misspelling a defendant’s name or referring to the complaint for the proper caption,
Extension for Good Cause
Plaintiffs further argue that they are entitled to an extension for good cause under Rule 4(m), which provides “that if the plaintiff shows good cause for the failure [to the serve the summons and complaint], the court shall extend the time for service for an appropriate period.” In determining whether good cause exists, courts consider plaintiffs’ due diligence in attempting to make service and any prejudice that defendants would suffer from the delay.
Here, plaintiffs have not offered a reason for their failure to serve the summons, nor do they suggest that they ever attempted to serve it. Instead, they argue that their service of the original Complaint, the November 12 order to show cause, and related documentation shows that they “made reasonable efforts” to effect proper service. But this argument does not explain the reason for their failure to serve the summons. The most the Court can assume is that their failure was due to counsel’s inadvertence or mistake, neither of which constitutes good cause. In addition, plaintiffs waited nearly three years since filing the original complaint to request an extension of time. Their failure to do so earlier evidences a considerable lack of due diligence. Accordingly, they have failed to establish good cause.
Court’s Discretion to Grant an Extension
Even absent a showing of good cause, a court has discretion to grant an
Here, plaintiffs have not proven that defendants had actual notice or concealed a defect in service. Moreover, their failure to effect serve appears to have been the result of inadvertence or mistake on the part of counsel. “[I]f the Rules are to mean anything, parties must diligently try to follow them and courts must enforce them, even if that means that cases must sometimes be finally determined on procedural grounds rather than on their substantive merits.”
Conclusion
For the foregoing reasons, the action is dismissed as against defendants One Groupe International, Inc., OSGold.com, OSOpps. com, and David C. Reed, for failure to make service, and as against defendants Frank Zu-ehristian and Pecunix, Inc. by consent.
SO ORDERED.
. Fed.R.Civ.P. 4(c)(1); accord Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 103, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) ("Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”).
. Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 90 L.Ed. 185 (1946).
. See, e.g., Time Products v. J. Tiras Classic Handbags, Inc., No. 93 Civ. 7856(CSH), 1994 WL 363930, at *4 (S.D.N.Y. July 13, 1994) ("As long as the summons is sufficiently accurate to give proper notice, the error will be deemed harmless and the party will be allowed to amend the summons.”); 4A Wright & Miller, Federal Practice & Procedure: Civil 3d § 1088 (2002).
. See, e.g., Macaluso v. N.Y. Dep’t of Envtl. Conservation, 115 F.R.D. 16, 18 (E.D.N.Y.1986) (ser
. See, e.g., Nat’l Dev. Co. v. Triad Holding Corp., 930 F.2d 253, 256 (2d Cir.1991); Martin v. N.Y. State Dept. of Mental Hygiene, 588 F.2d 371, 373 (2nd Cir.1978) (per curiam).
. See, e.g., Gianna Enterprises, 551 F.Supp. at 1358.
. The order required the defendants to show cause why an order of attachment and a preliminary injunction should not be issued.
. Cf. Bloom v. Democratic Nat’l Comm., No. 01 Civ.11598 (RWS), 2002 WL 31496272, at *2 (S.D.N.Y. Nov.6, 2002) (failure to serve a summons renders service of process "fatally defective”).
. See, e.g., Am. Commercial Barge Line Co. v. Tug JOAN SALTON, No. 99 Civ. 0846(RCC), 2001 WL 262724, at *3 (S.D.N.Y. Mar. 16, 2001).
. Nat'l Union Fire Ins. Co. v. Sun, No. 93 Civ. 7170(LAP), 1994 WL 463009, at *3 (S.D.N.Y. Aug.25, 1994); accord Eastern Refractories Co. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999).
. ATSI Communications, Inc. v. Shaar Fund, Ltd., 222 F.R.D. 79, 80 (S.D.N.Y.2004) (citing cases).
. See Advisory Committee’s Notes on 1993 Amendments to Fed.R.Civ.P. 4(m); see also Henderson v. United States, 517 U.S. 654, 658 n. 5, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996).
. Am. Commercial Barge Line Co., 2001 WL 262724, at ’”3.
. Id. at *5.
. Mused v. U.S.D.A. Food & Nutrition Serv., 169 F.R.D. 28, 35 (W.D.N.Y.1996).