Opinion
02 Civ. 8647 (DLC)
October 10, 2003
Andres M. Aranda, Aranda Guttlein New York, N.Y. for Plaintiff
Michael A. Cardozo, Hillary A. Frommer Corporation Counsel of the City of New York NY, For Defendant
OPINION ORDER
On October 29, 2002, Ramon Morillo ("Morillo") filed this civil rights action against the City of New York ("City"), Detective Fausto Rodriguez ("Rodriguez"), and unnamed police officers. The City has moved for summary judgment and Morillo, who has been represented throughout this litigation by counsel, cross-moves to extend the time to serve Rodriguez. For the following reasons, the City's motion is granted and the plaintiff's cross-motion is denied.
Background
On April 2, 1999, Rodriguez and other New York City police officers executed a search warrant at a Manhattan apartment. Drugs and a gun were seized during the search, and Morillo was arrested on a street corner not far from the apartment. Morillo was charged with drug and gun offenses, and indicted for drug offenses on April 13, 1999. From his arrest until September 12, 1999, over five months later, Morillo was incarcerated. The indictment was dismissed on February 24, 2000, following a hearing on a motion to suppress. During his prosecution, Morillo was represented by Andres Aranda, the same attorney who represents him in this civil action.
On May 30, 2000, the City received a Notice of Claim filed by Morillo. On June 2, 2000, the City, citing General Municipal Law Section 50-e, advised Morillo that the claim had been disallowed as filed more than 90 days from the "date of rrence."
On October 29, 2003, Morillo filed this action pursuant to 42 U.S.C. § 1983, for violations of his rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and under state law. Morillo served the City on December 9, 2002. On January 24, 2003, at an initial pretrial conference, a schedule was set for the case. Initial disclosures were to be served by March 7, and discovery was to be completed by May 30. At the conference, the parties discussed the fact that the named defendant had not yet been served.
On March 5 the City served its initial disclosures. After prompting by the defendant, Morillo served his initial disclosures on March 15. During the discovery period, the City served interrogatories and requests for production of documents and deposed the plaintiff. The plaintiff took no discovery. Neither the plaintiff nor his attorney appeared before the Magistrate Judge for the settlement conference held on June 11.
On July 16 the City filed its motion for summary judgment on all of the claims against it, citing various grounds, including the failure to prove that any violation of Morillo's rights was a result of a policy that would render the City liable under the teaching of Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978), and the fact that Morillo's state law claims were filed after the one year and ninety day statute of limitations period that applies to such claims, see Hyde v. Arresting Officer Caputo, No. 98 Civ. 6722 (FB), 2001 WL 521699, at *5 (E.D.N.Y. May 11, 2001).
Morillo has not opposed this motion. Instead, Morillo has cross-moved to extend the time to serve Rodriguez. In connection with that cross motion, the parties have presented the following facts regarding the service issue.
On February 1, 2003, Mr. Aranda wrote to Global Process Service ("Global") requesting that it serve a summons and complaint upon Rodriguez at One Police Plaza by February 3, 2003. The letter advised the company that the City had already been served. On February 10, Mr. Aranda wrote to the Court describing the attempt by Global to serve Rodriguez. He explained that personnel at One Police Plaza had refused to accept service since Rodriguez does not work there. He asked that the Court direct the Corporation Counsel to accept service or provide an address at which service could be made. That same day, the Corporation Counsel responded in writing and described how Rodriguez, a narcotics officer, could be served: "Service of process may be effectuated upon Detective Rodriguez, a narcotics officer, by handdelivering the summons and complaint to One Police Plaza, Room 1100, New York, New York 10038 and mailing a copy of both documents to Detective Rodriguez at that same address." (Emphasis supplied.) The City's letter advised the Court that it would have provided this information to Mr. Aranda if he had indicated that he was having difficulty serving Rodriguez, and that an Order was not necessary.
In response to the City's motion for summary judgment, which asserts that Rodriguez was never served in this action and that the time to serve him has expired, as has the statute of limitations for bringing any claim against him, Mr. Aranda presents for the first time an affidavit dated July 21, 2003 asserting that there was an attempt to serve Rodriguez on March 3, with a summons and complaint at One Police Plaza. The affidavit recites that "DET. FAUSTO RODRIGUEZ was not known there and the papers were not accepted there." There is no indication in the affidavit if there was an attempt to serve Rodriguez by delivering the summons and complaint to Room 1100. There is no representation that there was any mailing to One Police Plaza as part of an effort to serve Rodriguez. Mr. Aranda never advised the Court in March of any difficulty in serving Rodriguez and in fact took the position with the City in March that Rodriguez had been served.
In response to the City's letter of March 10 inquiring about the plaintiff's initial disclosures, which were to have been served by March 7, Mr. Aranda sent inter alia what he described as a copy of the affidavit of service upon Rodriguez. The affidavit reflected service on the City on February 26, however, and not on Rodriguez. The City's attorney informed Mr. Aranda on March 17 that the affidavit was evidence of service on the City and not on Rodriguez. Mr. Aranda responded on March 22, by sending another copy of the same affidavit of service to the City. Mr. Aranda never advised the City after February 10 that he needed assistance in serving Rodriguez.
In a conversation of April 28, the City again advised Mr. Aranda that Rodriguez had never been served and that the statute of limitations had expired on February 24, 2003. Mr. Aranda indicated at that time that he would not attempt to serve Rodriguez but would proceed against the City alone. Mr. Aranda did not advise the City at that time of any attempt to serve Rodriguez on March 3 or at any other time. On May 20, during the plaintiff's deposition, the City again advised Mr. Aranda that the City was the only defendant in the action.
Mr. Aranda asserts that the conversation with the City on April 28 was part of "settlement discussions" and should not be used as evidence in connection with this motion. The City denies that these statements were made in the course of settlement discussions. It is unnecessary to resolve this dispute since Mr. Aranda does not assert that he ever informed the City after February 10 that he needed its assistance to serve Rodriguez.
Discussion
As noted, there is no opposition to the City's motion for summary judgment. The only issue that requires discussion, therefore, is the cross-motion by the plaintiff to extend the time to serve individual defendant Rodriguez. Morillo contends that the 120 days within which service must be made, see Rule 4(m), Fed.R.Civ.P., should be extended for good cause shown.
In a reply affidavit of August 14, Mr. Aranda requests for the first time an extension of the discovery period so that he can take discovery of the City regarding its reliance on confidential informants to obtain search warrants, and to obtain information to identify other police officers who participated in the arrest of his client and the asserted violation of his client's rights. Discovery closed on May 30. The August 14 request to reopen discovery comes too late.
To the extent that Morillo contends that the City breached its duty to make a voluntary disclosure of any of this information in its initial disclosures, it is also too late to raise such a breach with the Court. The City provided its voluntary disclosures to the plaintiff on March 5; if there were any inadequacy with the disclosures, it was incumbent on the plaintiff to raise the issue at that time first with the City, and if the problem remained unresolved, with the Court.
Because the plaintiff has not shown that he is entitled to an extension of the time to serve Rodriguez, it is unnecessary to address the City's additional argument that the statute of limitations for bringing any suit against Rodriguez has also run.
Rule 4(m) provides in pertinent part that if service has not been made within 120 days of the filing of the complaint, the court shall dismiss the action without prejudice as to that defendant, "provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m). The plaintiff bears the burden of showing good cause for his failure to serve within the required time. See Hutchinson v. New York State Correctional Officers, No. 02 Civ. 2407 (CBM), 2003 WL 22056997, at *10 (S.D.N.Y. Sept. 4, 2003); AIG Managed Market Neutral Fund v. Askin Capital Management, L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000). To determine whether good cause has been shown, the court considers the plaintiff's efforts to effectuate service and the prejudice to the defendant from the delay. See Hutchinson, 2003 WL 22056997, at *10. The plaintiff must be diligent in attempting to serve, and the court may consider any requests for an extension of the time to serve. See AIG Managed Market Mutual Fund, 197 F.R.D. at 108. An attorney's ignorance, inadvertence or neglect do not constitute good cause. See Feingold v. Hankin, 269 F. Supp.2d 268, 276 (S.D.N.Y. 2003); AIG Managed Market Mutual Fund, 197 F.R.D. at 108.
Morillo has not shown that he made any timely and legally sufficient effort to serve Rodriguez. He has not shown that he ever attempted to serve him by delivering the summons and complaint to Room 1100 at One Police Plaza, or by mailing the documents to that address. The City provided him with the correct information for service on the very day that he first brought the issue to the attention of the Court and defense counsel: February 10. Therefore, Morillo has not shown he was diligent in his efforts to serve Rodriguez. The City has also shown that it would be prejudiced by an extension. Further litigation would require discovery to be reopened and would entail further motion practice regarding Rodriguez's statute of limitations defense.
Because he has not shown that he ever took the steps he needed to take to effect service, Morillo's argument that the City obstructed service can be swiftly rejected. Again, as soon as it was advised that Morillo needed assistance in understanding how to effect service, it provided that information to Morillo.
Conclusion
The motion by the City of New York for summary judgment is granted. The cross-motion to extend the time to serve Detective Rodriguez is denied.
SO ORDERED.