George v. Prof'l Disposables Int'l, Inc.

• Decision Date: 16 November 2016
• Docket Number: No. 15–CV–3385 (RA),15–CV–3385 (RA)
• Citation: 221 F.Supp.3d 428
• Parties: Saju GEORGE, Plaintiff, v. PROFESSIONAL DISPOSABLES INTERNATIONAL, INC.; David Pennella; Jodi Kiernan; Joseph Zocalli; and Custer (Jay) Amarillo, Defendants.
• Court: U.S. District Court — Southern District of New York

221 F.Supp.3d 428

Saju GEORGE, Plaintiff,

v.PROFESSIONAL DISPOSABLES INTERNATIONAL, INC.; David Pennella; Jodi Kiernan; Joseph Zocalli; and Custer (Jay) Amarillo, Defendants.

No. 15–CV–3385 (RA)

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

Signed November 16, 2016

Nadi Ganesan Viswanathan, Viswanathan Asia–Pacfic International Law Practice GR., PC, New York, NY, for Plaintiff.

David Wayne Garland, Laura Cathrine Monaco, Epstein Becker & Green, P.C., New York, NY, for Defendants.

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

RONNIE ABRAMS, United States District Judge

Defendants David Pennella, Joseph Zocalli, and Custer (Jay) Amarillo (the "Moving Defendants") move to dismiss the Amended Complaint in this action under Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure. See Mot. to Dismiss (Dkt. 77). Plaintiff Saju George opposes the motion. Dkt. 87. On June 8, 2016, the Court referred the motion to Magistrate Judge Moses. Dkt. 89. On August 31, 2016, Judge Moses issued a Report and Recommendation (the "Report") (Dkt. 98), which recommends granting the Moving Defendants' motion to dismiss for untimely service of process under Rule 12(b)(5) or, in the alternative, granting the Moving Defendants' motion to dismiss portions of the Amended Complaint for failure to state a claim under Rule 12(b)(6). Report at 1. On September 19, 2016, George filed objections to the Report. Dkt. 99. On October 5, 2016, the Moving Defendants responded to George's objections, requesting that the Court affirm the Report and sanction George and his counsel. Dkt. 100. For the reasons that follow, the Court adopts the Report's recommendation to grant the Moving Defendants' motion to dismiss pursuant to Rule 12(b)(5) and denies the Moving Defendants' request for sanctions.

STANDARD OF REVIEW

A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under Federal Rule of Civil Procedure 72(b), a party may make "specific written objections to the proposed findings and recommendations" within 14 days of being served with a copy of a magistrate judge's recommended disposition. Fed. R. Civ. P. 72(b). A district court must review de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "However, when the objections simply reiterate previous arguments or make only conclusory statements, the Court should review the report for clear error." Brown v. Colvin , 73 F.Supp.3d 193, 197 (S.D.N.Y. 2014). "To accept those portions of the report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Hunter v. Lee , No. 13-CV-5880 (PAE), 2016 WL 5942311, at *1 (S.D.N.Y. Oct. 11, 2016) (quoting King v. Greiner , No. 02-CV-5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) ).

LEGAL STANDARD

Rule 12(b)(5) permits a party to move for dismissal of a complaint based on inadequate service of process. Fed. R. Civ. P. 12(b)(5). "In considering a Rule 12(b)(5) motion to dismiss for insufficient service of process, a court must look[ ] to matters outside the complaint to determine whether it has jurisdiction." Cassano v. Altshuler , 186 F.Supp.3d 318, 320 (S.D.N.Y. 2016). "Once a defendant challenges the sufficiency of service of process, the burden of proof is on the plaintiff to show the adequacy of service." Vantone Grp. Ltd. Liab. Co. v. Yangpu Ngt Indus. Co. , No. 13-CV-7639 (LTS), 2016 WL 3926449, at *2 (S.D.N.Y. July 15, 2016) (citation omitted); accord Khan v. Khan , 360 Fed.Appx. 202, 203 (2d Cir. 2010) (summary order).

"In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which governs the content, issuance, and service of a summons." DeLuca v. AccessIT Grp., Inc. , 695 F.Supp.2d 54, 64 (S.D.N.Y. 2010). Rule 4(m) provides, in relevant part:

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).¹

Under Rule 4(m), a district court must grant a plaintiff an extension of time for service if the plaintiff demonstrates good cause. "The plaintiff bears the burden of proof in showing that it had good cause in not timely serving the defendant." AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P. , 197 F.R.D. 104, 108 (S.D.N.Y. 2000). "Good cause ... is evidenced only in exceptional circumstances, where the insufficiency of service results from circumstances beyond the plaintiff's control." Feingold v. Hankin , 269 F.Supp.2d 268, 276 (S.D.N.Y. 2003). "Good cause is measured against the plaintiff's reasonable efforts to effect service and the prejudice to the defendant from the delay, and the court should look to whether the plaintiff was diligent in making reasonable efforts to effect service." Vantone , 2016 WL 3926449, at *2. Furthermore, a "delay in service resulting from the mere inadvertence, neglect, or mistake of a litigant's attorney does not constitute good cause." AIG , 197 F.R.D. at 108.

Even in the absence of good cause, however, district courts have discretion to grant extensions of time to effect proper service. Zapata v. City of New York , 502 F.3d 192, 196 (2d Cir. 2007) ; see also Mares v. United States , 627 Fed.Appx. 21, 23 (2d Cir. 2015) (summary order) ("Although an extension of time is required when good cause has been shown, a district court has wide latitude in deciding when to grant extensions absent good cause." (internal citation omitted)). "Factors relevant to the exercise of this discretion include, inter alia , the relative prejudice to the parties (including whether the action would be barred by the statute of limitations and whether defendant had actual notice of the suit) and whether there is a ‘justifiable excuse’ for the failure properly to serve." Mares , 627 Fed.Appx. at 23 ; see also Soos v. Niagara Cty. , 195 F.Supp.3d 458, 466–67 (W.D.N.Y. 2016) ; DeLuca , 695 F.Supp.2d at 66.

DISCUSSION

George does not object to the Report's finding that he failed to serve Defendants within the appropriate period for service. See Fed. R. Civ. P. 4(m) ; Report at 10–13; Pl.'s Obj. at 7. Rather, George argues that dismissal under Rule 12(b)(5) is improper because: (1) George demonstrated good cause for his delay in serving the Moving Defendants; and (2) even if he has not established good cause, the Court should grant an extension as a matter of discretion. See Pl.'s Obj. at 7–12. The Court rejects both of these objections.

A. Good Cause

George first argues that he has demonstrated good cause for his untimely service. Pl.'s Obj. at 7. George's argument consists of a single sentence: "Plaintiff has already put forward his ‘good faith’ efforts in his ‘Cross Motion’ and the accompanying Declaration and the ‘Memorandum of Law.’ " Pl.'s Obj. at 7 (citations omitted).

As a threshold matter, the Court must determine the appropriate standard of review for the Report's finding that George did not demonstrate good cause. Rule 72(b)(2) permits a party to file "specific written objections" to a magistrate judge's proposed findings and recommendations. Fed. R. Civ. P. 72(b)(2). Thus, "[o]bjections to a Report must be specific and clearly aimed at particular findings in the magistrate judge's proposal." Molefe v. KLM Royal Dutch Airlines , 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009). Furthermore, "[i]t is improper for an objecting party to attempt to relitigate the entire content of the hearing before the Magistrate Judge by submitting papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge." Ortiz v. Barkley , 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008). "When a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Molefe , 602 F.Supp.2d at 487 ; see also Vega v. Artuz , No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002) ("[O]bjections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original [papers] will not suffice to invoke de novo review.").

George's one-sentence objection to the Report's good-cause finding lacks the specificity necessary for the Court to review this finding de novo. Although the Report devotes nearly three pages to George's claim of good cause, George has not argued that the Report's analysis suffers from any specific defects or raised any argument aimed directly at the Magistrate Judge's findings. See Pl.'s Obj. at 7. Instead, George asserts that he has "already put forward" his position on the issue of good cause and offers a parenthetical citation to several submissions he made to the Magistrate Judge. See id. Thus, rather than making the "specific written objections" Rule 72(b)(2) requires, George has simply reiterated "the same arguments and positions taken in the original papers submitted to the Magistrate Judge." Ortiz , 558 F.Supp.2d at 451. Accordingly, the Court reviews George's objection for clear error.

The Court finds no clear error in the Report's determination that George had failed to demonstrate good cause for failing to timely serve Defendants. Before the Magistrate Judge, George asserted that his untimely service was due to "a variety of reasons," including (i) the "very recent" amendments to Rule 4(m) ; (ii) the "series of filings that the ‘Amended Complaint’ went through"; (iii) his request for an issue of summons, and (iv) a "very tight" discovery schedule. Pl.'s Mem....