Troeger v. Ellenville Cent. Sch. Dist.

• Decision Date: 31 March 2014
• Docket Number: 1:12-cv-1882 (DNH/CFH)
• Parties: MICHAEL TROEGER, Plaintiff, v. ELLENVILLE CENTRAL SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Northern District of New York

MICHAEL TROEGER, Plaintiff, v. ELLENVILLE CENTRAL SCHOOL DISTRICT, Defendant.

1:12-cv-1882 (DNH/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: March 31, 2014

APPEARANCES:

MICHAEL TROEGER

Plaintiff pro se

DRAKE, LOEB, HELLER, KENNEDY,

GOGERTY, GABA AND RODD, PLLC

Attorneys for Defendants

OF COUNSEL:

ADAM L. RODD, ESQ.

DAVID N. HURD

United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Pro se plaintiff Michael Troeger ("plaintiff" or "Troeger") brings this action against defendant Ellenville Central School District ("Ellenville") alleging employment discrimination on the basis of disability and retaliation. Plaintiff seeks injunctive relief and compensatory damages.

Defendant moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(m) based upon insufficient service of process. ECF No. 5. Plaintiff opposed, defendant replied and plaintiff filed a sur-reply without permission. Plaintiff then moved for a preliminary injunction. ECF No. 17. Defendant opposed that motion and plaintiff replied. Recently, plaintiff filed another motion for injunctive relief. ECF No. 22. All of the pending motions were considered on their submissions without oral argument.

II. BACKGROUND¹

Plaintiff is a guidance counselor employed by Ellenville. He alleges, inter alia, that Ellenville discriminated against him on the basis of his disability, improperly confiscated his sick time, and retaliated against him for his complaints of discrimination. He was initially injured in November 2004 and October 2005 while working, leaving him "permanently/ partially disabled, in that he could not walk, sit, stand, bend, sleep, lift, or run like that of an average person of his age due to two herniated discs in his back." Compl. ¶¶ 7-8. After filing various complaints directly with the school, plaintiff filed a complaint of discriminationagainst Ellenville with the U.S. Equal Employment Opportunity Commission ("EEOC") on July 27, 2012. On September 24, 2012, he was mailed a right-to-sue letter from the EEOC.

Troeger filed this complaint on December 26, 2012. Two days later, on December 28, 2012, the Clerk of the Court issued to plaintiff a Summons to serve on defendant. Plaintiff was mailed a copy of the court's Pro Se Handbook and General Order Number 25 on the same date. A Filing Order was also issued which instructed that the complaint must be served on defendant within 60 days of filing the action and an initial conference was scheduled for April 9, 2013 with United States Magistrate Judge Christian F. Hummel. On February 21, 2013, four days shy of the 60 day deadline in which to serve the complaint pursuant to General Order Number 25 (by February 25, 2013), plaintiff requested an adjournment of the initial conference and indicated that due to retaliation by his employer, he had been rendered medically incapacitated and service of the complaint had not yet been effected. On February 26, 2013, plaintiff's request was granted and the initial conference was adjourned until April 29, 2013. Plaintiff did not serve the complaint upon Ellenville until June 5, 2013 and did not file proof of service until September 27, 2013.²

The initial conference was eventually held on July 22, 2013 and the Rule 16 scheduling conference was adjourned without date pending a decision on the instant motion.

III. RELEVANT LEGAL STANDARDS

A. 120 Day Deadline Under Fed. R. Civ. P. 4(m)

Federal Rule of Civil Procedure 4(m) provides that,

[i]f a defendant is not served within 120 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). The 120 day deadline starts running when the complaint has been filed. Courts generally consider three factors to determine whether there is good cause within the meaning of Rule 4(m): "'1) the existence of circumstances that made service difficult or impossible, 2) whether the plaintiff was represented by counsel, and 3) the effect of dismissal on plaintiff's claims.'" Tanner v. Lowe's Home Ctr., Inc., No. 5:11-CV-1454, 2013 WL 4424979, at *3 (N.D.N.Y. Aug. 14, 2013) (Suddaby, J.) (quoting Cioce v. Cnty. of Westchester, No. 02-CV-3604, 2003 WL 21750052, at *4 (S.D.N.Y. July 28, 2003)). "A party seeking a good cause extension bears a heavy burden of proof." Alvarado v. Am. Freightways, Inc., No. 04-CV-9536, 2005 WL 1467893, at *5 (S.D.N.Y. June 21, 2005). "Good cause is generally found only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control." Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999) (internal quotations omitted).

B. 60 Day Deadline Under Local Rule 4.1(b) (General Order Number 25)

Local Rule 4.1(b), encompassing General Order Number 25, provides an additional deadline requirement:

Upon the filing of a complaint, the Clerk shall issue to the plaintiff General Order 25 which requires, among other things, service of process upon all defendants within sixty (60) days of the filing of the complaint. This expedited service requirement is necessary to ensure adequate time for pretrial discovery and motion practice. In no event shall service of process be completed after the time specified in Fed. R. Civ. P. 4.

N.D.N.Y. L.R. 4.1(b). Courts maintain the discretion to excuse a plaintiff's failure to serve the complaint within this 60 day deadline, as long as the plaintiff serves it within Rule 4(m)'s 120 day deadline. Tanner, 2013 WL 4424979, at *4; see also Norwood v. Salvatore, No. 12-CV-1025, 2013 WL 1499599, at *3 (N.D.N.Y. Apr. 10, 2013) (D'Agostino, J.); Edsell v. Indep. Freightway, No. 94-CV-0227, 1995 WL 375827, at *2-3 (N.D.N.Y. June 16, 1995) (Pooler, J.), aff'd on other grounds, 101 F.3d 681 (2d Cir. 1996).

III. DISCUSSION

A. Defendant's Motion to Dismiss

Defendant contends the complaint must be dismissed because plaintiff deliberately chose not to serve his complaint within the 60 day time frame set forth in General Order Number 25 nor the 120 day deadline imposed by Federal Rule of Civil Procedure 4(m) and cannot demonstrate any colorable good faith reason for non-compliance. Plaintiff argues that he was unable to serve the complaint within the proscribed time frames because he was medically incapacitated.

First, it is noted that it took plaintiff 161 days to serve the complaint in this action—from December 26, 2012 to June 5, 2013. Next, in considering whether there are facts to justify a determination that good cause existed to toll a portion of the 120 day service deadline under Rule 4(m), it is found that: (1) no circumstances existed making service difficult or impossible, contrary to what plaintiff alleges; (2) plaintiff is proceeding pro se in this action; and (3) the practical effect of a dismissal on plaintiff's claims would be to preclude him from reasserting them.

As to plaintiff's allegations that he was medically incapacitated and unable to serve the complaint within the December 26, 2012 to April 26, 2013 window as required, his argumentsare unpersuasive. First, plaintiff worked full-time for the majority of scheduled days in January, February, March, and April prior to service of the complaint. According to an affidavit submitted by Jean Miller, Payroll Coordinator and Account Clerk at Ellenville, plaintiff missed only one day of work in January, six days of work in February, zero days of work in March, and two days of work in April.

Second, plaintiff's opposition papers detail a myriad of activities which he undertook relative to both the alleged ongoing discrimination at Ellenville and this lawsuit during the same time period in which he contends he was unable to serve the complaint due to his medical incapacitation. In January 2013, plaintiff continued to oppose discriminatory practices at Ellenville and made numerous requests from defendant under the Freedom of Information Law. On January 23, 2013, he received and reviewed attendance records of another Ellenville employee and sought assistance from the New York State Police regarding that employee. On February 7, 2013, he sought intervention from the teachers union. In doing so, he drafted an interoffice memorandum detailing his complaints and requested a grievance meeting. On February 14, 2013, he submitted another complaint to Ellenville relating to alleged retaliation against children. In support of this complaint, he drafted another letter to Ellenville's superintendent, copying six individuals, including the attorney general and Governor's office. On February 14, 2013, plaintiff drafted an additional interoffice memorandum to the superintendent regarding his FOIL requests.

Plaintiff contends he became violently ill on February 18, 2013, requiring transport to the hospital by ambulance. On February 21, 2013, he wrote a letter to the court requesting an extension of the initial court conference date as he had not served the complaint, due to medical incapacitation. Although it is unclear when plaintiff returned to work after thisincident, records indicate he missed a total of six days of work in February 2013. On March 22, 2013, plaintiff filed an additional complaint with Ellenville via a three page letter. He required medical evaluation again on March 26, 2013, but records indicate he did not miss any work days in March.

By plaintiff's own admissions, while claiming to have been medically incapacitated and unable to serve the complaint by the April 26, 2013 deadline, he continued to make complaints to Ellenville, file Freedom of Information Law requests, and write letters to Ellenville regarding his concerns and this case. In addition, he continued to work...