Romand v. Zimmerman
| Decision Date | 31 March 1995 |
| Docket Number | No. 94-CV-118.,94-CV-118. |
| Citation | 881 F. Supp. 806 |
| Parties | Denise Annette ROMAND, Plaintiff, v. Mark ZIMMERMAN, as Personnel Director of Saratoga Hospital; Saratoga Hospital; David Andersen, as Chief Executive Officer of Saratoga Hospital, Defendants. |
| Court | U.S. District Court — Northern District of New York |
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Jack J. Sissman, Albany, NY, for plaintiff.
Kelley, Drye & Warren, New York City (Barbara Marden, of counsel), for defendants.
Plaintiff alleges violations of the Americans With Disabilities Act (ADA) and the Rehabilitation Act of 1973 by defendants. She filed a timely complaint with the Equal Employment Opportunity Commission (EEOC) and received a right to sue letter on October 28, 1993. She filed this suit alleging the above claims on January 31, 1994 and filed for in forma pauperis status (IFP). Her IFP request was denied and plaintiff was directed to file the $120 filing fee within 45 days.
In an order dated June 23, 1994, the court dismissed plaintiff's action for failure to file the $120 fee within 45 days. Plaintiff now seeks reconsideration of the dismissal of her suit for failure to pay the filing fee. Also, defendants now move for dismissal of the suit pursuant to Fed.R.Civ.P. 12(b)(1) and (5) should the court reconsider the dismissal for failure to pay the filing fee.
A court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice. Larsen v. Ortega, 816 F.Supp. 97, 114 (D.Conn.1992). It is in light of this standard that the court undertakes reconsideration of its June 23, 1994 order and the related June 28, 1994 judgment dismissing this action.
In this case, plaintiff filed a timely letter-motion for reconsideration through her newly acquired attorney on July 8, 1994. In this motion plaintiff's attorney noted that plaintiff actually had responded to the March 18, 1994 order directing her to file the $120 fee. An attached receipt shows that plaintiff paid the filing fee on April 28, 1994, within the 45-day limit provided in the order. Unfortunately, through some error, this payment was not entered by the Clerk of Court until September 29, 1994, thus leading to the June 23, 1994 order and subsequent judgment which dismissed plaintiff's case.
Due to the obvious error of law and injustice involved, the court now reconsiders its June 23, 1994 order and subsequent judgment of June 28, 1994 and vacates them. Plaintiff's case is hereby reopened. Despite this, the additional considerations below warrant dismissal of much of plaintiff's action.
Defendants claim that the court lacks subject matter jurisdiction over defendants Andersen and Zimmerman pursuant to Fed. R.Civ.P. 12(b)(1) and lacks jurisdiction over all the defendants due to insufficiency of service of process pursuant to Fed.R.Civ.P. 12(b)(5). Upon a closer reading of defendants' papers it appears that the motion they bring pursuant to Rule 12(b)(1) to dismiss the claims against defendants Andersen and Zimmerman is more properly considered a dismissal motion pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and the court will treat it as such.
Defendants assert that plaintiff did not serve them with the summons and complaint in this action until after the time limit for service had run. Fed.R.Civ.P. 4(m) states that service of the summons and complaint must be made upon the defendants within 120 days after the filing of the complaint. Local Rule 4.1(b) states that service of process should be completed within 60 days of the date the complaint is filed, but in no event after the 120-day limit of Fed.R.Civ.P. 4.
Fed.R.Civ.P. 4(m) allows a court, upon motion or on its own initiative after notice to the plaintiff, to dismiss an action without prejudice as to any defendant or direct that service be made within a certain time if the plaintiff can show good cause for the failure to serve within the 120-day period.
Plaintiff in this case served process on the three named defendants 143 days after the original presentation of her complaint to the court. Plaintiff attempts to show good cause for this failure to timely serve based on the fact that she did not receive summonses for service until after her application for in forma pauperis status, which she presented along with her complaint, was denied.1 By order dated March 18, 1994, plaintiff's application for in forma pauperis status was denied and she was ordered to pay the filing fee of $120 within 45 days. Plaintiff paid this fee on April 28, 1994 at which time she was issued summonses of service for the three defendants. Plaintiff claims that the clerk informed her at that time that she was to serve the defendants within 60 days. Plaintiff served process on the defendants on June 23, 1994, within the 60-day period stated by the clerk, but beyond 120 days from the original presentation of her complaint to the court.
Defendants argue that this misinformation by the clerk is not sufficient to embody "good cause" under Rule 4(m). It is clear that the 120-day filing requirement applies to pro se plaintiffs as well as those represented by counsel. Systems Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir.1990). However, the 1993 Amendments to the Notes of the Advisory Committee on Rules regarding Subdivision 4(m) clearly state that "the court shall allow additional time if there is good cause shown for the plaintiff's failure to effect service in the prescribed 120 days, and ... the court is authorized to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown." The Notes go on to say that "relief may be justified, for example, if the applicable statute of limitations would bar the refiled action" and that "the court should also take care to protect pro se plaintiffs from consequences of confusion or delay attending the resolution of an in forma pauperis petition."
A complaint is not properly filed until after a decision on whether to proceed in forma pauperis has been made. See Krajci v. Provident Consumer Discount Co., 525 F.Supp. 145, 149 (E.D.Pa.1981) (); Rosenberg v. Martin, 478 F.2d 520, 522 n. 1a (2d Cir.1973) (). Under the Local Rules of the Northern District of New York, a determination of whether the applicant will be granted leave to proceed in forma pauperis must be made prior to service of process. See L.R. 5.4(a) ().
A similar situation was presented in Robinson v. America's Best Contacts & Eyeglasses, 876 F.2d 596 (7th Cir.1989). There the plaintiff submitted his complaint and request for in forma pauperis status. After IFP status was denied, plaintiff sought and received a 90-day extension in which to pay the filing fee. He paid the fee within this extended time period and the clerk issued the summons upon receipt of the fee. The defendant argued that the case should be dismissed because it was not served within 120 days after the filing of the complaint.
The court found, however, that to hold that the 120-day service requirement began to run on the day the plaintiff originally presented his claim to the district court would be out of harmony with the Local Rule governing requests to proceed in forma pauperis and with the district court's extension of the time in which to pay the filing fee. Id. at 598. The court stated that "simple justice requires that summons need not be issued and service had until after the denial of in forma pauperis status and the fixing of a new time for the payment of filing fees." Id. The court finds this same logic applicable to the case at hand, especially in light of the Notes of the Advisory Committee and the Northern District's Local Rules. Where an application for in forma pauperis status delays the process of filing and service, it appears proper not to dismiss the action for failure to serve within 120 days of the original presentation of the complaint to the court. It is also to be noted that plaintiff did serve the defendants within 120 days of the filing of her complaint after IFP status was denied. Thus, the court denies defendants' motion to dismiss this suit pursuant to Fed. R.Civ.P. 4(m).
Defendants also claim that service upon Saratoga Hospital was improper pursuant to Fed.R.Civ.P. 4(h). On June 23, 1994, plaintiff served a copy of the complaint upon Robert DeSio, Chairperson of the Board of Trustees at Saratoga Hospital. However, the complaint was addressed to "Mark Zimmerman, Personnel Director, Saratoga Hospital." Plaintiff asserts that this service was correct because she considers Mr. DeSio to be an "officer" and a "director" of the hospital.
Rule 4(h) states that service may be made on a entity that is subject to suit under a common name "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process ..." Fed. R.Civ.P. 4(h). Courts have held that directors of corporations are not officers or other agents of the corporation for purposes of Rule 4. 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1102 (1987); ...
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