Opinion
1:19-cv-03548 (CM) (SDA)
06-01-2022
Shamark Williams, Plaintiff, v. Michael Vaccaro et al., Defendants.
TO THE HONORABLE COLLEEN MCMAHON, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
BACKGROUND
On April 22, 2019, Williams, represented by counsel, Peter E. Brill (“Attorney Brill”) and David Gray (“Attorney Gray”) of the Brill Legal Group, filed his Complaint in this action. (Compl., ECF No. 1.) He asserts constitutional and other claims against Officer Vaccaro and other “John Doe” police officers arising out of Williams' arrest on January 12, 2018, as well as a claim against the City of New York (the “City”) for negligent hiring, retention, training and supervision. (See id. ¶¶ 15-99.)
Pending before the Court is a response by pro se Plaintiff Shamark Williams (“Plaintiff” or “Williams”) to the Court's April 13, 2022 Order (4/13/22 Order, ECF No. 46) that Plaintiff show cause why this action should not be dismissed without prejudice against Defendant New York City Police Officer Michael Vaccaro (“Officer Vaccaro”) for failure to timely serve Officer Vaccaro, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. For the reasons set forth below, I respectfully recommend that the Court dismiss the action without prejudice as to Officer Vaccaro.
On June 26, 2019, a summons was issued as to the City (City Summons, ECF No. 14) and a summons was issued as to Officer Vaccaro. (Vaccaro Summons, ECF No. 15.) On September 18, 2019, counsel entered an appearance on behalf of the City. (City Not. of Appearance, ECF No. 16.) On December 10, 2019, the City filed its Answer. (City Answer, ECF No. 17.) The City notes in its Answer that Officer Vaccaro had not yet been served with process. (See id. at 1 n.1.)
No proof of service of the summons upon Officer Vaccaro ever was filed on the ECF docket.
In early 2020, Plaintiff and the City engaged in a mediation process pursuant to the Court's Plan for Certain § 1983 Cases Against the City of New York, pursuant to Local Civil Rule 83.10. (5/23/20 City Ltr., ECF No. 18.) On May 23, 2020, the City and Plaintiff requested that the Court stay this case for 60 days so that an in-person mediation could be held. (See id. at 2.) On May 26, 2020, the Court granted the motion to stay. (5/26/20 Order, ECF No. 19.)
On November 4, 2020, the Court held an initial pretrial conference. (See 11/4/20 Minute Entry.) Also on November 4, 2020, the Court entered an Order setting a deadline of March 31, 2021 for the completion of discovery. (11/4/20 Order, ECF No. 22.)
On November 10, 2020, Attorney Brill and Attorney Gray filed a motion to withdraw as counsel for Williams due to an “irretrievable breakdown in communication with [him] concerning matters that are material to his case.” (Gray Aff., ECF No. 23-1, ¶ 4.) On November 17, 2020, the Court granted the motion to withdraw, stating that “Plaintiff has 90 days [i.e., until February 15, 2021] to appear by new counsel or he will be expected to litigate his case Pro Se.” (11/17/20 Order, ECF No. 24.)
On March 25, 2021, counsel for the City filed a letter stating that Williams had not provided her or the Court with an updated mailing address, and that Williams had not otherwise contacted her. (3/25/21 City Ltr., ECF No. 25, at 1.) Counsel for the City requested that the Court order Williams to update his address on the ECF docket by April 15, 2021. (See id. at 2.) On May 5, 2021, the Court endorsed the City's March 25 letter directing the City to provide the Court with a last known address for Williams. (5/5/21 Mem. End., ECF No. 26.) On June 1, 2021, the City filed a letter providing a last known address that it obtained from the former counsel for Williams. (6/1/21 City Ltr., ECF No. 28.)
On February 4, 2022, the Court entered an Order directing that, since there had been no recent activity on the docket, the parties file a letter within seven days (either jointly or separately) reporting on the status of the case. (2/4/22 Order, ECF No. 31.) On February 9, 2022, Williams filed a Notice of Change of Address. (2/9/22 Not., ECF No. 34.) On February 11, 2022, the City filed a status letter stating that “[d]ue to [a] complete breakdown in communication, the City has been unable to move this case forward.” (City 2/11/22 Ltr., ECF No. 36.) On February 23, 2022, the Court entered an Order directing that “[t]he City should start to move this case now, ” and scheduling a conference for March 30, 2022. (2/23/22 Mem. End., ECF No. 37.) The conference later was rescheduled to April 4, 2022. (3/29/22 Cal. Not., ECF No. 39.)
On February 7, 2022, Williams filed a motion for extension of time to appeal a “2-2” Order (2/7/22 Mot., ECF No. 33), but that motion was terminated by the Court since there was no indication on the docket that there was any Order entered on 2-2-20, 2-2-21 or 2-2-22 from which an appeal could be taken. (See 2/10/22 Order, ECF No. 35.)
Following the April 4, 2022 conference, this case was referred to me for general pretrial purposes. (Order of Ref., ECF No. 42.) On April 11, 2022, a conference was held before me during which certain discovery issues were addressed. (See 4/11/22 Order, ECF No. 45.) During the April 11 telephone conference, counsel for the City represented that service never was effected upon Officer Vaccaro. (See OTSC, ECF No. 46, at 1.)
On April 13, 2022, I issued an Order for Williams to show cause why this case should not be dismissed without prejudice against Officer Vaccaro for failure to timely serve him, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (OTSC at 1-2.) My Order, which was emailed to Williams' former counsel of record (i.e., Attorney Gray and Attorney Brill), stated that, if former counsel represented to the Court that service upon Officer Vaccaro previously was effectuated, then no later than May 13, 2022, they were to send proof of such service to the Court. (See id. at 2.)
The time for Officer Vaccaro to be served under Rule 4(m) of the Federal Rules of Civil Procedure expired on July 21, 2019. (See OTSC at 1.)
On April 22, 2022, Williams filed his response to my Order to show cause. (4/22/22 Pl.'s Resp., ECF No. 48.) In his response, Williams states that he relied on Attorney Gray and Attorney Grill “to ensure that [Officer] Vaccaro was properly served, ” and that he “believe[d] that Attorneys David Gr[a]y and Peter Brill did not execute proper service on Officer Vaccaro, as they should have once [he] retained them on April 4, 2019.” (See id. ¶¶ 3-4.) On May 3, 2022, an Amended Order of Reference was entered referring dispositive motions to me for a report and recommendation. (Am. Order of Ref., ECF No. 52.)
On May 12, 2022, Attorney Gray filed a letter stating that, on August 22, 2019, he “personally served the . . . summons and complaint upon the NYPD by personally providing a physical copy to a clerk at the offices of the NYPD at One Police Plaza, New York, NY 10038.” (Gray 5/12/22 Ltr., ECF No. 56.) Attorney Gray attached to his letter a copy of the Complaint, which appears to contain a blue stamp “POLICE DEPARTMENT - CITY OF NEW YORK - 2019 Aug 22.” (See id., Ex. 1, ECF No. 56-1.)
On May 12, 2022, in light of the apparent service on the NYPD, the Court entered an Order requiring the Law Department to advise the Court whether it will be representing Officer Vaccaro in this action. (5/12/22 Order, ECF No. 57.) On May 23, 2022, the Law Department filed a letter stating that the August 22, 2019 service upon Officer Vaccaro was ineffective because he was not served at the 33rd Precinct; that Attorney Gray never had filed an affirmation of service on the ECF docket; and that the service nevertheless was untimely under Rule 4(m). (See City 5/23/22 Ltr., ECF No. 58, at 2.)
LEGAL STANDARDS
Rule 4(m) of the Federal Rules of Civil Procedure provides:
If a defendant is not served within 90 days after the complaint is filed, the court- on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m).
Good cause to excuse a failure to effect service exists only in “exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond [his] control.” Ping Chen ex rel. U.S. v. EMSL Analytical, Inc., 966 F.Supp.2d 282, 306 (S.D.N.Y. 2013) (quoting E. Refractories Co. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999)). “A party seeking a good cause extension bears a heavy burden of proof, ” which is not satisfied by “a showing that the plaintiff encountered some unanticipated difficulty.” Spinale v. United States, No. 03-CV-01704 (KMW) (JCF), 2005 WL 659150, at *3 (S.D.N.Y. Mar. 16, 2005) (citations omitted). An attorney's inadvertence, neglect or mistake is not good cause. See Ping Chen, 966 F.Supp.2d at 306; see also Counter Terrorist Grp. U.S. v. New York Mag., 374 Fed.Appx. 233, 235 (2d Cir. 2010) (“Attorney error does not constitute good cause under Rule 4(m).”).
“[A] district court may grant an extension in the absence of good cause, but it is not required to do so.” Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007) (emphasis in original) (citing Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002)). At minimum, before granting an extension of time to serve absent a showing of good cause, a district court should assess whether “the plaintiff” has “advance[d] some colorable excuse for [his] neglect” of Rule 4(m)'s time limit. See id. at 198 (citing Bogle-Assegai v. Connecticut, 470 F.3d 498, 509 (2d Cir. 2006)).
The Second Circuit has held that it “will not find an abuse of discretion in the procedure used by the district court, so long as there are sufficient indications on the record that the district court weighed the impact that a dismissal or extension would have on the parties.” Zapata, 502 F.3d at 197 (affirming denial of extension where statute of limitations rendered dismissal effectively with prejudice). Courts typically consider four factors: “(1) whether the applicable statute of limitations would bar [a] refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiff's request for relief from the provision.” Songhorian v. Lee, No. 11-CV-00036 (CM), 2012 WL 6043283, at *4 (S.D.N.Y. Dec. 3, 2012) (internal quotation marks and citation omitted).
DISCUSSION
Plaintiff's request for an extension of time to serve Officer Vaccaro (see 4/22/22 Pl.'s Resp. at 2) should be denied and this action should be dismissed without prejudice as to Officer Vaccaro.
Attorney Gray's service upon the NYPD on August 22, 2019 was not effective service upon Officer Vaccaro. Rule 4(e)(1) of the Federal Rules of Civil Procedure permits service in accordance with the law of the state in which the district court is located or in which service is made. Fed.R.Civ.P. 4(e)(1). Under New York law, a plaintiff may serve process by:
[D]elivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business.N.Y. C.P.L.R. § 308(2). The term “actual place of business” has been defined as a place where the defendant is regularly physically present or regularly transacts business. See Underwood v. Shukat, No. 01-CV-00786 (HB), 2002 WL 1315597, at *1 (S.D.N.Y. June 14, 2002); see also Tieman v. City of Newburgh, No. 13-CV-4178 (KMK), 2015 WL 1379652, at *7 (S.D.N.Y. Mar. 26, 2015) (“A person's ‘actual place of business' must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location.” (citation omitted)).
Rule 4(1) requires that a plaintiff file an affidavit of service demonstrating that proper service was effectuated on the defendant. See Fed.R.Civ.P. 4(1). However, “[f]ailure to prove service does not affect the validity of service.” Fed.R.Civ.P. 4(1)(3).
In the present case, the Law Department states that Officer Vaccaro's proper service address is at the 33rd precinct. (See City 5/23/22 Ltr. at 2.) No showing has been made that Officer Vaccaro was regularly present or regularly transacted business at One Police Plaza. Thus, service was not properly made upon Officer Vaccaro. See Escobar v. New York, No. 05-CV-03030 (ENV) (CLP), 2010 WL 629828, at *3 (E.D.N.Y. Feb. 22, 2010), judgment vacated on reconsideration on other grounds, 2010 WL 11700296 (E.D.N.Y. May 28, 2010) (service at police headquarters, One Police Plaza, held not effective since “plaintiff has not demonstrated that Sergeant Barelli regularly conduct[ed] business there or that he is regularly physically present there”). Plaintiff's counsel should have been aware that the August 22, 2019 service was not proper since the City in its December 10, 2019 Answer affirmatively stated that Officer Vaccaro had not yet been served with process. (See City Answer at 1 n.1.)
In addition, even if One Police Plaza was a valid location to deliver the summons and complaint to Officer Vaccaro, Attorney Brill nowhere indicates that he also mailed the summons and complaint to Officer Vaccaro, as required by N.Y. C.P.L.R. § 308(2).
Plaintiff has not made a showing of good cause for failure to properly serve Officer Vaccaro that would entitle Plaintiff to an extension. The failure to serve was a result of Plaintiff's counsel's inadvertence, neglect or mistake, which does not constitute good cause. See Ping Chen, 966 F.Supp.2d at 306; see also Carl v. City of Yonkers, No. 04-CV-07031 (SCR), 2008 WL 5272722, at *6 (S.D.N.Y. Dec. 18, 2008), aff'd, 348 Fed.Appx. 599 (2d Cir. 2009) (no good cause when failure to effect proper service was result of plaintiff's attorney's negligence). The Court next considers whether, in its discretion, to grant an extension, even in the absence of good cause, by weighing the applicable factors.
The first factor is whether the applicable statute of limitations would bar a refiled action. If the Court declines to grant Plaintiff's extension of time to serve Officer Vacarro, then Rule 4(m) requires the Court to dismiss the claims against them. See Fed.R.Civ.P. 4(m). This would result as a practical matter in a dismissal of such claims with prejudice since the statute of limitations likely would bar a future lawsuit against Officer Vaccaro. In New York, the applicable limitations period for claims under 42 U.S.C. § 1983 (“Section 1983 claims”) is three years. See Zapata, 502 F.3d at 194 n.3. Plaintiff was arrested on January 12, 2018, and the charges related to his criminal prosecution were dismissed on January 13, 2019. (See Compl. ¶¶ 16, 57.) As such, the statute of limitations on the Section 1983 claims arising out of Plaintiff's January 12, 2018 arrest expired on January 12, 2021 and the statute of limitations with respect to Plaintiff's claim for malicious prosecution expired on January 13, 2022. Thus, the first factor weighs in favor of granting Plaintiff an extension of time to serve the Complaint on Officer Vaccaro. See Songhorian, 2012 WL 6043283, at *4 (“[c]ourts have consistently considered the fact that the statute of limitations has run on a plaintiff's claim as a factor favoring the plaintiff in a Rule 4(m) analysis” (citation omitted)).
The second factor is whether Officer Vaccaro had actual notice of Plaintiff's claims. The record before the Court is not sufficient to assess this factor. Here, the Law Department, which is representing the City in this case, and which routinely represents members of the NYPD in defending against Section 1983 claims, had actual notice of Plaintiff's claims against Officer Vaccaro. However, there is no evidence in the record that Officer Vaccaro himself received notice of this lawsuit. Indeed, the Law Department states in its May 23, 2022 letter that the NYPD does not have a request for legal assistance by Officer Vaccaro. (See City 5/23/22 Ltr. at 2.)
The third factor favors Officer Vaccaro since Officer Vaccaro did not attempt to conceal any defect in service. The failure to serve Officer Vaccaro was strictly the result of Plaintiff's counsel's inaction (and, after counsel withdrew, Plaintiff's own inaction).
Finally, as to the fourth factor, Officer Vaccaro will experience prejudice from the lack of service given that he would be required to defend this action even though the service period under Rule 4(m) and the limitations period under applicable law have passed. See Zapata, 502 F.3d at 198 (“prejudice to the defendant . . . arises from the necessity of defending an action after both the original service period and the statute of limitations have passed before service”). The prejudice to Officer Vaccaro is particularly stark in the specific circumstances of this case since the relevant events occurred more than four years ago, and his memory of the events undoubtedly has faded.
Thus, the applicable factors favor Officer Vaccaro. Even if the balance of factors favored Plaintiff, I would not recommend that Plaintiff be granted an extension of time to serve Officer Vaccaro on the record before the Court. See Coleman, 290 F.3d at 934 (“the fact that the balance of hardships favors the plaintiff does not require the district judge to excuse the plaintiff's failure to serve the complaint and summons within the [prescribed period under] the rule” (emphasis in original)).
In Zapata, the Second Circuit affirmed a district court's denial of the plaintiff's motion for extension of time to serve the complaint, even though the denial meant that the plaintiff's claims were time-barred. See Zapata, 502 F.3d at 197. Like Zapata, in the present case, Plaintiff has “made no effort to effect service within the service period, neglected to ask for an extension within a reasonable period of time, and . . . advanced no cognizable excuse for the delay.” Id. at 199. In the present case, at the time that the service period under Rule 4(m) expired, Plaintiff was represented by licensed attorneys, “and it was incumbent on th[e] attorney[s] to protect plaintiff's rights by seeing to it that the complaint was properly served in a timely manner. To the extent that that was not done, the fault lies not with the defendants or with the Court, but with plaintiff's counsel.” Carl, 2008 WL 5272722, at *7 (granting dismissal of claims against individual officer defendants for lack of timely service); see also Sullivan v. Newburgh Enlarged Sch. Dist., 281 F.Supp.2d 689, 702 (S.D.N.Y. 2003) (“This is not a situation in which the requirements of the rule should be ‘overlooked' due to plaintiff's pro se status. She has been represented by two attorneys who are members of the Bar of this Court. If among the three of them they failed to serve two named defendants, this court has no obligation to excuse their lack of diligence.”).
By contrast, in Songhorian, where this Court declined to dismiss a pro se plaintiff's claims based upon a failure to timely serve defendants pursuant to Rule 4(m), the pro se plaintiff never was represented by counsel. See Songhorian, 2012 WL 6043283, at *5 (stating that “district courts should be especially hesitant to dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant” (citation omitted)).
“[T]he self-evident purpose of Rule 4(m) is to speed litigation and to discourage haphazard and delayed service.” Kapeluschnik v. LeSchack & Grodensky, P.C., No. 96-CV-02399 (ERK), 1997 WL 34652665, at *2 (E.D.N.Y. Mar. 20, 1997). Indeed, the time period to effect service was reduced in 2015 from 120 days to 90 days to “reduce delay at the beginning of litigation.” See Fed.R.Civ.P. 4, 2015 Advisory Committee Notes. This case already is more than three years old. Granting additional time now to Plaintiff to effect service on Officer Vaccaro would further delay this case and run counter to the “just, speedy and inexpensive determination” of the case. See Fed.R.Civ.P. 1.
To the extent that Plaintiff has been deprived of a potentially viable claim against Officer Vaccaro, he may have a remedy in the form of a malpractice suit against his former attorneys, but that does not entitle him to prosecute his long-neglected claims at the expense of Officer Vaccaro. See Link v. Wabash R. Co., 370 U.S. 626, 634 n.10 (1962) (“If an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice. But keeping this suit alive [against Defendant] merely because [P]laintiff should not be penalized for the omissions of his own attorney would be visiting the sins of [P]laintiff's lawyer[s] upon [D]efendant.”).
Of course, in order to be successful in a malpractice suit against his former attorneys, Plaintiff would need to prove his underlying claims in this case against Officer Vaccaro. See Davis v. Klein, 88 N.Y.2d 1008, 1009-10 (1996) (“In order to establish a prima facie case of legal malpractice, a plaintiff must demonstrate that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence.”).
CONCLUSION
For the foregoing reasons, I respectfully recommend that this case be dismissed without prejudice as to Officer Vaccaro, pursuant to Rule 4(m).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge McMahon.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).