Aguirre v. Rising Ground

• Court: District Court, S.D. New York
• Decided: May 24, 2023
• Docket: 7:23-cv-03986
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK RUBY AGUIRRE, Plaintiff, 23-CV-3986 (KMK) -v- ORDER OF SERVICE RISING GROUND, Defendant. KENNETH M. KARAS, United States District Judge: Plaintiff brings this pro se Action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297. Plaintiff alleges that her employer discriminated and retaliated against her based on her religion. By Order dated May 15, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is, without prepayment of fees. I. Discussion Because Plaintiff has been granted permission to proceed IFP, she is entitled to rely on the Court and the U.S. Marshals Service to effect service.1 Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)).

1 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected service until the Court reviewed the Complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. To allow Plaintiff to effect service on Defendant Rising Ground through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (USM-285 form) for Defendant. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary

for the Marshals Service to effect service upon Defendant. If the Complaint is not served within 90 days after the date the summons issues, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff’s responsibility to request an extension of time for service). Plaintiff must notify the Court in writing if her address changes, and the Court may dismiss the Action if Plaintiff fails to do so. II. Conclusion The Clerk of Court is directed to mail an information package to Plaintiff. The Clerk of Court is further instructed to issue a summons for Defendant Rising Ground, complete the USM-285 forms with the addresses for this defendant, and deliver to the U.S. Marshals Service all documents necessary to effect service.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: May 24, 2023 White Plains, New York

KENNETH M. KARAS United States District Judge DEFENDANTS AND SERVICE ADDRESSES

Rising Ground 463 Hawthorne Avenue Yonkers, NY 10705