Meilleur v. Strong
| Decision Date | 24 May 2012 |
| Docket Number | Docket No. 11–2729–cv. |
| Citation | 82 Fed.R.Serv.3d 949,682 F.3d 56 |
| Parties | Leslie Maria MEILLEUR, Plaintiff–Appellant, v. Douglas STRONG, Detective, and an Unidentified Police Officer, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Leslie Maria Meilleur, New York, N.Y., Plaintiff, Pro Se.
No Appearance, for Defendants–Appellees.
Before: CALABRESI, RAGGI, and CHIN, Circuit Judges.
Plaintiff–Appellant Leslie Meilleur, proceeding pro se and in forma pauperis (“IFP”), appeals (a) a January 10, 2011 order of the district court (Paul G. Gardephe, Judge ) dismissing her 42 U.S.C. § 1983 claim for failure timely to serve the Defendants, who are members of the New York Police Department (“N.Y.P.D.”), and (b) a May 26, 2011 order of that same court denying her Fed.R.Civ.P. 60(b) motion to reopen. Meilleur's primary argument on appeal is that she has demonstrated “good cause” for her failure timely to serve the Defendants because (a) as a pro se litigant proceeding IFP, she was entitled to rely on the Marshals to effect service, and (b) the Marshals' delay in effecting service was through no fault of her own. Consequently, she argues, the district court erred both in dismissing her action and in denying her motion for Rule 60(b) relief. For the reasons stated below, we affirm the district court's dismissal of Meilleur's Section 1983 claim and its denial of her Rule 60(b) motion.
On July 14, 2010, Meilleur, proceeding pro se, filed a Section 1983 complaint against Detective Douglas Strong of the N.Y.P.D. and “other officers involved (whose name [ sic ] I can't recall) of the 33rd precinct.” Complaint at 1, Meilleur v. Strong, No. 10 Civ. 5371(PGG) (S.D.N.Y.), ECF No. 2. 2 The complaint asserted, inter alia, claims of false arrest and malicious prosecution. On that same day, the district court granted Meilleur leave to proceed IFP and issued a summons for Detective Strong.3 The district court clerk's office subsequently provided Meilleur with a “ FRCP 4 Service Package” that contained, inter alia, an original summons and copies of the summons, a pro se handbook, USM–285 forms with instructions for arranging for the United States Marshals Service to serve process, and affirmation of service forms.
Pursuant to Fed.R.Civ.P. 4(m), which requires that a plaintiff serve a complaint and summons “within 120 days after the complaint is filed,” Meilleur faced a deadline of November 11, 2010 to serve the Defendants. Despite receiving substantial instructions from the district court regarding the delivery of service, she did not meet this deadline. The district court did not, however, dismiss Meilleur's action. Instead, in an order filed on November 16, 2010, the court directed Meilleur “to arrange for prompt service of the summons and complaint on [the] Defendants,” and stated that if Meilleur did not (a) effect service by the new deadline of December 30, 2010, and (b) “make a written application to the [district court] to extend the time for service, showing good cause for the failure to serve,” her action would be dismissed. Order at 1, Meilleur v. Strong, No. 10 Civ. 5371(PGG) (S.D.N.Y.), ECF No. 3. The district court also informed Meilleur that the Pro Se Office of the district court “may be of assistance in connection with court procedures.” Id. at 2.
On November 23, 2010, Meilleur filed a motion with the district court seeking an extension of time to effect service. Along with this motion, Meilleur submitted an affirmation in which she referenced her attempt to serve the summons and complaint through the New York City Sheriff's Office. By an order filed on November 29, 2010, the district court denied Meilleur's motion, noting that “over thirty days remain[ed] before the current deadline [was to] expire[ ].” Order, Meilleur v. Strong, No. 10 Civ. 5371(PGG) (S.D.N.Y.), ECF No. 4. The court reiterated that Meilleur was required to effect service by December 30, 2010, and warned that her action would be dismissed if (a) she failed to meet that deadline and (b) she did not “make a written application to the [district court] to extend the time for service, showing good cause for the failure to serve.” Id.
Meilleur subsequently made arrangements with the United States Marshals Service to have the summons and complaint served on Strong.4 Specifically, on December 2, 2010, Meilleur delivered the necessary documents—along with the complete address for the N.Y.P.D.'s Thirty–Third Precinct—to the Marshals Service. By the time the district court's December 30 deadline had run, however, the Marshals had not “set up for [personal service].” See Motion to Reopen, ex. U.S. Marshals Service Process Receipt and Return, Meilleur v. Strong, No. 10 Civ. 5371(PGG) , ECF No. 6. That came only on February 2, 2011. The Marshals, in turn, did not complete service to the Thirty–Third Precinct until February 7, 2011. Id.
Although, as noted immediately above, Meilleur delivered her complaint and summons to the Marshals on December 2, she did not apprise the court of the arrangements she had made with the Marshals, nor—as the December 30 deadline drew near—did she file a proof of service or lodge a new request for an extension of time in accordance with the court's November 16, 2010 order. Consequently, the district court, through an order filed on January 10, 2011, dismissed Meilleur's action without prejudice pursuant to Rule 4(m). The district court did not enter the separate judgment with respect to this order that is required under Fed.R.Civ.P. 58(a). Meilleur, for her part, did not file a notice of appeal in the immediate wake of the dismissal. Nor did she alert the district court to the fact that the summons and complaint were in the possession of—and awaiting delivery by—the Marshals at the time of the dismissal.
Indeed, Meilleur did not offer any kind of response to the court's January 10 order until May 10, 2011, when, along with a process receipt and return of service detailing the Marshals' successful delivery of the complaint and summons to the Thirty–Third Precinct in February 2011, she filed a motion to reopen her case. By an order filed on May 26, 2011, the district court denied Meilleur's motion, reasoning that “[s]ervice was not made until February 7, 2011—208 days after the summons was issued,” and that Meilleur “did not explain why service could not be made between July 14, 2010 and November 11, 2010, or within the additional time provided by the [district court].” Order at 1, Meilleur v. Strong, No. 10 Civ. 5371(PGG) , ECF No. 8. Meilleur filed a notice of appeal on May 31, 2011, in which she stated she sought to challenge “order 10 civ 5371 (PGG), motion to reopen case [ sic ],” but listed the date of entry for the order from which she was appealing as January 10, 2011, which corresponds to the date of entry for the district court's initial order dismissing her action. Notice of Appeal, Meilleur v. Strong, No. 10 Civ. 5371(PGG) , ECF No. 15.
To establish our jurisdiction over this matter, we must first ascertain the scope of Meilleur's appeal. We “construe notices of appeal liberally, taking the parties' intentions into account.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir.1995). Meilleur's May 31, 2011 notice contains references to the district court's May 26, 2011 order denying her motion to reopen (the district court's “order 10 civ 5371 (PGG), motion to reopen case [ sic ]”) and its January 10, 2011 order dismissing her Section 1983 action. Notice of Appeal, Meilleur v. Strong, No. 10 Civ. 5371 (PGG) , ECF No. 15. Read liberally to give fullest effect to Meilleur's apparent intentions, her notice of appeal is thus two-pronged, calling us to review both the original dismissal of her action and the subsequent denial of her motion to reopen.
Meilleur's May 2011 motion did not specify the provision or provisions of the Federal Rules of Civil Procedure under which she sought to “reopen” her case. Meilleur's motion fell far outside the 28–day period for filing a Rule 59(e) motion to alter or amend a judgment. Consequently, we construe her motion as proceeding under Rule 60(b). See Lora v. O'Heaney, 602 F.3d 106, 111 (2d Cir.2010) ().
We are satisfied that, so construed, we have jurisdiction over the totality of Meilleur's appeal. Meilleur's challenge to the district court's May 26, 2011 order was timely, falling well within the 30–day limit specified by Fed. R.App. P. 4(a)(1). The same holds for her challenge to the court's January 10, 2011 order. As we noted above, the district court did not enter a separate judgment for that order, as is required by Fed.R.Civ.P. 58(a). “A failure to set forth a judgment or order on a separate document when required by [Rule] 58(a)(1) does not[, however,] affect the validity of an appeal from that judgment or order.” Goldberg & Connolly v. N.Y. Cmty. Bancorp, Inc., 565 F.3d 66, 71 n. 3 (2d Cir.2009) (citing Fed. R.App. P. 4(a)(7)(B)) (internal quotation marks and brackets omitted). Pursuant to Fed.R.Civ.P. 58(c)(2)(B), the district court's judgment with respect to its order of January 10, 2011 became final on June 9, 2011, which was 150 days after the January 10, 2011 entry of that order on the civil docket. See Goldberg & Connolly, 565 F.3d at 71 n. 3. Meilleur filed her notice of appeal on May 31, 2011, several days before the constructive entry of the judgment of the January 10 order. Accordingly, we treat her appeal of that order as having been filed on June 9, 2011, the date of the constructive entry of the court's judgment. Id. (citing Fed. R.App. P. 4(a)(2)). It follows that Meilleur's appeal of the January 10, 2011 order is timely.
We, therefore, turn to Meilleur's challenge to the district court's order...
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...demonstrated capacity for understanding issues to greater degree than pro se litigant “hopelessly out of his depth”); Meilleur v. Strong, 682 F.3d 56, 63-64 (2d Cir. 2012) (court did not err in dismissing prisoner’s pro se complaint for failure to effect timely service when prisoner did not......