Hahn v. Office & Prof'l Emps. Int'l Union

• Decision Date: 01 June 2015
• Docket Number: No. 13 Cv. 946(JGK).,13 Cv. 946(JGK).
• Parties: John J. HAHN, Plaintiff, v. OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, AFL–CIO, and Office and Professional Employees International Union, Local 153, Defendants.
• Court: U.S. District Court — Southern District of New York

107 F.Supp.3d 379

John J. HAHN, Plaintiff,

v.OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, AFL–CIO, and Office and Professional Employees International Union, Local 153, Defendants.

No. 13 Cv. 946(JGK).

United States District Court, S.D. New York.

Signed June 1, 2015.

Eric Robert Stern, Jonathan Scott Sack, Sacks & Sacks, LLP, New York, NY, for Plaintiff.

Matthew Gerard Connaughton, Cohen, Leder, Montalbano & Grossman, L.L.C., Kenilworth, NJ, Jane Lauer Barker, Pitta & Giblin, L.L.P., New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, John J. Hahn, brings this action against Office and Professional Employees International Union, AFL–CIO (the "International Union") and Office and Professional Employees International Union, Local 153 ("Local 153"), alleging two claims pursuant to the Family Medical Leave Act ("FMLA" or "Act"), 29 U.S.C. § 2601 et seq. The International Union now moves to dismiss for failure to serve process pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(m). Hahn did not serve the International Union within the 120–day period specified by Rule 4(m), and has presented no good cause or explanation for his failure to do so. Accordingly, the International Union's motion is granted.

I.

The following factual allegations are construed in the light most favorable to the plaintiff.

The plaintiff is an individual and a resident of Staten Island, New York. Am. Compl. ¶ 7. The International Union is a labor union, the Office and Professional Employees International Union ("OPEIU"), with its principal place of business in New York. Am. Compl. ¶ 8. Local 153 is a local member of OPEIU with its principal place of business in New York. Am. Compl. ¶ 9.

In October, 2000, Michael Goodwin, the President of the International Union, interviewed Hahn in the International Union's offices. Am. Compl. ¶¶ 17, 21. Goodwin assigned Hahn to be a Business Representative at Local 153. Am. Compl. ¶¶ 22. Hahn worked in this position with a strong level of commitment until he fell ill in January 2010. Am. Compl. ¶¶ 43–45.

During his employment, Hahn was required to have contact with both Goodwin and Richard Lanigan, who was the Vice President of the International Union and Secretary–Treasurer of Local 153. Am. Compl. ¶¶ 16–20. The International Union and Local 153 shared the same office space, support staff, mail room, supply room, break room, and printers. Am. Compl. ¶¶ 24–26. Goodwin and Lanigan each exercised common management over both unions, and were both aware of all financial and other business-related issues of each union. Am. Compl. ¶ ¶ 27–30. Goodwin and Lanigan also provided guidance to, established policies for, and were responsible for discipline of the employees assigned to Local 153. Am. Compl. ¶¶ 33–35. Both unions had a pension plan overseen by the same individual, and Goodwin co-chaired the Pension Plan and the Health Plan for Local 153. Am. Compl. ¶¶ 31, 37. The two unions held monthly staff meetings in Goodwin's International Union office, where Goodwin was kept up to date on the business activities of Local 153. Am. Compl. ¶¶ 39–40. From time to time, Goodwin instructed Hahn to attend political events on behalf of both the International Union and Local 153, and on one occasion, assigned Hahn to work temporarily for another Local OPEIU division in Southern California. Am. Compl. ¶¶ 34, 41. The International Union and Local 153, together, employed more than 50 people working within 75 miles of Mr. Hahn's place of employment. Am. Compl. ¶ 13.

As a result of his illness, during January and early February of 2010, Hahn was frequently absent from work and was ultimately terminated on or about February 10, 2010. Am. Compl. ¶¶ 48–52. On or around June 13, 2011, Hahn filed a complaint with the United States Department of Labor ("DOL") alleging several FMLA violations. Am. Compl. ¶ 58. The DOL's investigation found that the defendants had failed to follow proper FMLA protocol. Am. Compl. ¶ 60. Hahn then brought an action in this Court against Local 153 on February 8, 2013. Local 153 moved for summary judgment on the basis that it did not employ enough employees to fall within the FMLA's reach. The Court denied the motion without prejudice to renewal after limited and expedited jurisdictional discovery on the number of employees Local 153 had during the relevant period. The Court granted the plaintiff the opportunity to file an amended complaint, which the plaintiff did in August 2014. The Amended Complaint, filed on August 15, 2014, named the International Union as an additional defendant and alleged joint employer. Local 153 then moved to dismiss the amended complaint for failure to state a claim. The Court denied that motion.

The plaintiff never served the International Union in the 120–day period after filing the Amended Complaint. Indeed, the plaintiff only served the International Union with the summons and amended complaint in May 2015.¹ The International Union now moves to dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for failure to serve process.

II.

Rule 12(b)(5) provides for dismissal of a complaint for insufficient service of process. In deciding such a motion, the Court must refer to Rule 4(m), which provides:

If a defendant is not served within 120 days after the complaint is filed, the court ... must dismiss the action without prejudice against the 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) ; see also DeLuca v. AccessIT Group, Inc., 695 F.Supp.2d 54, 64 (S.D.N.Y.2010). When a defendant challenges the adequacy of service, "the burden of proof is on the plaintiff to show the adequacy of service." Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y.1997). If the plaintiff has failed to effectuate service in accordance with Rule 4(m), a court has the discretion to grant an extension of time to serve the defendant with or without good cause. Zapata v. The City of New York, 502 F.3d 192, 196 (2nd Cir.2007). However, where the allegations against the defendant fail to state a viable claim, an extension would be futile and should not be granted. See, e.g., Strickland v. Hongjun, No. 10cv5445, 2011 WL 2671895, at *1 (S.D.N.Y. July 8, 2011).

III.

In this case, the plaintiff gives no indication of even attempting to serve process on the International Union for almost nine months after amending its complaint to include the International Union as a defendant, and the plaintiff offers no excuse for his failure to do so. Ordinarily in these circumstances, Rule 4(m) would counsel a dismissal of the claims against the International Union without prejudice. But because the claims against the International Union would likely be time-barred if the plaintiff asserted them again, the parties dispute the proper course for the Court to take. The plaintiff requests an extension of time to serve the International Union, and the International Union argues that the claims should be dismissed with prejudice. For the reasons that follow, the Court dismisses the claims against the International Union without prejudice.

A.

"Dismissal for failure to serve within the time period is without prejudice. It may, however, operate as a dismissal with prejudice when the action will be time-barred." Putnam v. Morris, 833 F.2d 903, 904–05 (10th Cir.1987) (citing Lovelace v. Acme Markets, Inc., 820 F.2d 81, 85 (3d Cir.1987) ; Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (per curium)). The statute of limitations for an FMLA claim is two years, or three years for an intentional violation. 29 U.S.C. § 2617(c). Even assuming the three-year statute of limitations applies in this case,² it ended two days after the plaintiff filed the original complaint on February 8, 2013. Therefore, the statute of limitations has long since run, and if this Court were to dismiss the plaintiff's claims against the International Union without prejudice, the plaintiff could still not reassert them because they would be time-barred.

"Where, as here, good cause is lacking, but the dismissal without prejudice in combination with the statute of limitations would result in a dismissal with prejudice ... the district court [should] weigh[ ] the impact that a dismissal or extension would have on the parties." Zapata, 502 F.3d at 197 (emphasis in original). As such, the plaintiff requests an extension of time to serve to avoid the statutes of limitations problems that would result from dismissal. But it would be improper for the Court to grant such a request if the plaintiff's claims against the International Union were already time-barred when he first added the International Union as a party in his Amended Complaint on August 15, 2014. By August 15, 2014, the three-year statute of limitations had already run. Therefore, the Court will not extend time for the plaintiff to serve the International Union unless, pursuant to Federal Rule of Civil Procedure 15(c)(1), the amended complaint against the International Union relates back to the original complaint filed against Local 153. See, e.g., VKK Corp. v. Nat'l Football League, 244 F.3d 114, 128 (2d Cir.2001).

B.

Federal Rule of Civil Procedure 15 lays out three situations in which an amendment to a pleading relates back to the original pleading:

(A) The law that provides the applicable statute of limitations allows relations back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice

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