Tanner v. Lowe's Home Ctr., Inc.
| Decision Date | 14 August 2013 |
| Docket Number | 5:11-CV-1454 (GTS/ATB) |
| Parties | GLENN TANNER, Plaintiff, v. LOWE'S HOME CTR., INC., Defendant. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
LAW OFFICE OF JAMES D. HARTT
Counsel for Plaintiff
HARRIS BEACH, PLLC
Counsel for Defendants
OF COUNSEL:
JAMES D. HARTT, ESQ.
DANIEL J. MOORE, ESQ.
Currently before the Court, in this employment discrimination action filed by Glenn Tanner ("Plaintiff") against Lowe's Home Center ("Defendant"), is Defendant's motion to dismiss this action with prejudice for failure to serve pursuant to Fed. R. Civ. P. 4(m), and Local Rule 4.1(b) of the Local Rules of Practice for this Court. For the reasons set forth below, Defendant's motion is denied.
Generally, liberally construed, Plaintiff's Amended Complaint alleges that, in or about May of 2011, he was wrongfully terminated from his job at Lowe's Home Center, Inc., in Syracuse, New York, because of his age and his complaints of age discrimination. (See generally Dkt. No. 8 [Plf.'s Amended Compl.].) Based on these and other factual allegations, Plaintiff claims that Defendant violated Plaintiff's following rights in the following manner: (1) his rights under the Age Discrimination in Employment Act by subjecting him to adverse conditions in employment as a result of his age; and (2) his rights under the Civil Rights Act of 1964 by terminating his employment in retaliation for his having complained about age discrimination to Defendant on numerous occasions, and for his having filed an age discrimination complaint against the Defendant. (Id.) Familiarity with the remaining factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.)
On November 28, 2011, Plaintiff received a "right to sue" notice from the U.S. Equal Employment Opportunity Commission ("EEOC"), regarding his claims of discrimination. (Dkt. No. 5.)1
On December 13, 2011, Plaintiff filed his original Complaint in this action, along with a motion to proceed in forma pauperis. (Dkt. Nos. 1, 2.)
On December 19, 2011, the Court issued an Order that (1) granted Plaintiff's motion to proceed in forma pauperis, and (2) directed Plaintiff to "file" an Amended Complaint by January 20, 2012. (Dkt. No. 4.)
On January 23, 2012, and March 6, 2012, the Court granted (or partially granted) Plaintiff's requests for extensions of that filing deadline. (Text Orders filed 01/23/2012 and 03/06/2012.)
On April 2, 2012,2 Attorney James D. Hartt filed a notice of appearance on behalf of Plaintiff. (Dkt. No. 7.)3 On that same day, the Court granted Plaintiff a third extension of the deadline for the "fil[ing]" of his Amended Complaint. (Text Order filed 04/02/2012.)
On April 19, 2012, Plaintiff filed his Amended Complaint. (Dkt. No. 8.)
On May 29, 2012, the Court issued a Text Order accepting the Amended Complaint for filing because it was "in compliance with the 4/2/2012 Text Order," and directing the Clerk of the Court to "issue" a Summons and a General Order 25 packet. (Text Order filed 05/29/2012.) That same day, the Clerk of the Court issued a Summons and Proof of Service form. (Dkt. No. 9.) Moreover, the Clerk of the Court issued (1) a Filing Order stating, inter alia, that "[t]his filing order is to be served on all parties to the action along with the complaint or petition for removal within sixty (60) days of filing this action," and (2) a copy of the District's GeneralOrder #25. (Dkt. No. 10 [emphasis added].) General Order #25 stated inter alia, as follows:
When serving a Complaint or Notice of Removal, the filing party shall serve on all other parties a copy of this General Order and the attached materials. Service of process should be completed within Sixty (60) days from the initial filing date. This expedited service is necessary to fulfill the dictates of the Civil Justice Reform Act Expense and Delay Reduction Plan of this court and to ensure adequate time for pretrial discovery and motion practice. However, in no event shall service of process be completed after the time specified in Fed. R. Civ. P. 4, or any other Rule or Statute which may govern service of process in a given action.
(Id. [emphasis added].)
On July 9, 2012, the Court issued a Text Order directing Plaintiff's counsel to file a status report by July 13, 2012, advising the Court of the status of the service of the Summons, Amended Complaint and General Order #25 upon Defendant. (Text Order filed 07/09/2012.)
On July 12, 2012, Plaintiff's counsel filed a status report stating that Defendant would be served with Summons, Amended Complaint and General Order #25 on or before July 12, 2012. (Dkt. No. 11.)
On July 25, 2012, Plaintiff's counsel filed a Proof of Service reflecting that the Summons had been served on Defendant on July 12, 2012. (Dkt. No. 12.)
Generally, in support of its motion to dismiss, Defendant argues as follows: (1) Plaintiff's Complaint must be dismissed because he failed to serve it, or an amended version of it, on Defendant within 120 days of the granting of his motion to proceed in forma pauperis on December 19, 2011, as required by Fed. R. Civ. P. 4(m); (2) the aforementioned failure was not excused by (a) Plaintiff's pro se status (during part of that time period), (b) an assertion that Defendant has not been prejudiced by the delay, (c) an attempt by Plaintiff to file an Amended Complaint, and/or (d) an extension of the filing deadline by the Court; (3) even if Plaintiff'sfailure to serve his original Complaint in a timely fashion could be excused, Plaintiff's Amended Complaint must be dismissed because he failed to serve it on Defendant within 60 days of its filing on April 19, 2012, as required by Local Rule 4.1(b); and (4) the dismissal of Plaintiff's Amended Complaint should be with prejudice, because Plaintiff is time barred from filing a new Complaint (in that his 90-day limitations period to file suit following receipt of a right-to-sue notice has expired).
Generally, in his response to Defendant's motion, Plaintiff argues as follows: (1) Plaintiff's failure to serve his Complaint, or an amended version of it, within 120 days is tantamount to excusable neglect, because (a) Plaintiff spent part of that time period trying to locate and retain counsel, and ultimately complied with the Court's deadline extension for the filing of the Amended Complaint, and (b) after appearing in this action, his reasonably believed that the Clerk of Court was going to serve the Summons, based on a Text Order directing the Clerk of the Court to "issue" a Summons, and based on the fact that Plaintiff had previously been proceeding pro se; and (2) moreover, Plaintiff did in fact serve Defendant with the Summons and Complaint 45 days after the Summons was generated by the Court, and only three days after being notified by the Court of non-service.
Generally, in its reply, Defendant argues as follows: (1) Defendant's motion should be granted because Plaintiff's actions as a pro se litigant (which were taken during only part of the relevant time period) did not merit an extension of time to serve his Complaint or Amended Complaint on Defendant; (2) Plaintiff's counsel's reason for his failure to timely effect service on Defendant, and his belief that the word "issue" meant "serve," does not constitute good cause and/or excusable neglect, which require something more than simple inadvertence or mistake ofcounsel; and (3) prejudice to Defendant is not a necessary precondition to the dismissal of a Complaint for failure to effect timely service. (See generally Dkt. No. 17 [Def.'s Reply Memo. of Law].)
Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
If a defendant is not served within 120 days after the complaint is filed, the court--on motion or 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.
Generally, this 120-day deadline starts running when the original complaint has been filed;4 the fact that an amended complaint has been required by the Court due to pleading defects in the original complaint does not, in and of itself, restart the 120-day deadline. See Jennis v. Rood, 488 F. Supp.2d 172, 180 (N.D.N.Y. 2007) (Kahn, J.) ( ).
However, the failure to serve a defective complaint within 120 days of its filing may constitute a factor to be considered in making a good-cause determination under Fed. R. Civ. P. 4(m). Cf. Johnson v. United States, 152 F.R.D. 87, 88-89 (E.D. La. 1993) ( ...
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