Blessinger v. United States

174 F.R.D. 29, 38 Fed. R. Serv. 3d 1328, 1997 U.S. Dist. LEXIS 15952, 1997 WL 413698
CourtDistrict Court, E.D. New York
DecidedJuly 17, 1997
DocketNo. 92 CY 2710(SJ)
StatusPublished
Cited by13 cases

This text of 174 F.R.D. 29 (Blessinger v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blessinger v. United States, 174 F.R.D. 29, 38 Fed. R. Serv. 3d 1328, 1997 U.S. Dist. LEXIS 15952, 1997 WL 413698 (E.D.N.Y. 1997).

Opinion

ORDER

JOHNSON, District Judge:

BACKGROUND

The Plaintiff, Lawrence Blessinger, filed his original complaint in this Court on June 8, 1992, and filed an amended complaint on June 15, 1992. The complaint alleges a civil rights violation under 42 U.S.C. § 1983. The Plaintiff alleges injuries resulting from the acts of members of the United States Coast Guard occurring June 10,1991.1

According to letters submitted to the Court by Michael Krome, prior counsel for the Plaintiff, requested assistance with service from the Coast Guard’s legal department. Krome was told by a Lieutenant Ken-ney at the legal department to serve the Coast Guard Defendants at the First District Office of the Coast Guard, the office supervising Fort Totten, where the alleged acts occurred. Lieutenant Kenney also told Krome that he could not release the whereabouts of the named Defendants. Krome did not specifically inquire about where to serve the individual named Defendants.

Plaintiff then attempted to serve the complaint on both the Coast Guard and the individually named Defendants via certified mail to the First District of the United States Coast Guard June 23, 1992. A representative of the First Coast Guard District, Assistant Legal Officer Lieutenant Commander John Asterly, returned the services packages to Krome the next week with a letter stating that his office could not accept service on behalf of the named Defendants. Asterly gave no further guidance as to how to proceed in finding the named Defendants.

After numerous conferences and discovery taking place over more than three years, the Defendants requested permission from Magistrate Judge Mann to file a motion for summary judgment. The Magistrate granted the Defendants leave to move for summary judgment on the ground that the Plaintiff filed to effectuate service on the individually named Defendants pursuant to Federal Rule of Civil Procedure 4(m). The Defendants claim that the Plaintiff has never properly served the individually named Defendants, and that since the three year statute of limitations has expired, that the Court should dismiss the complaint and award summary judgment as to those Defendants. The Defendants’ motion is denied.

DISCUSSION

Federal Rule of Civil Procedure 4(m), states:

If service of the summons and complaint is not made upon the defendant within 120 days after filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Rule 4(m), effective December 1,1993 amended Rule 4(j), and retroactively applies to all pending civil cases. The amendment [31]*31allows the court, in its discretion, to extend the time for service, even if the plaintiff fails to show good cause. If the plaintiff has shown good cause, the extension is mandatory. Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir.1995) citing Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305-06 (3d Cir.1995), cert. denied, — U.S.--, 117 S.Ct. 1449, 137 L.Ed.2d 554 (1997).

Two factors are relevant in a court’s evaluation of good cause: “(1) the reasonableness and diligence of plaintiff’s efforts to serve; and (2) the prejudice to defendants from the delay.” Bloomer v. City of New York, 89 CV 592, 1994 WL 92388, at *4 (E.D.N.Y. Mar. 3, 1994) (citations omitted). For the reasons stated below, the Court concludes that the Plaintiff has shown good cause for his failure to serve the complaint within the required time period.

The actions of the Coast Guard representatives in large part explain the Plaintiff’s failure to serve the individually named Defendants. Plaintiff’s counsel made a sincere attempt to send the complaint to the proper parties, and requested information from Coast Guard authorities; those who would be reasonably expected to know the whereabouts of Coast Guard members. Counsel received no cooperation and could only serve the individual Defendant’s complaints on the Coast Guard. The Court does not accuse the individual Defendants of actively evading service.2 The Coast Guard, however, knew of both the suit and the individuals involved, and made no effort to assist in service. The Court has every reason to believe that the Coast Guard, the primary beneficiary of having these Defendant’s removed from the suit, did evade the service of its members with the hope of having the entire matter disposed of without having to address the merits of Plaintiff’s claims. See advisory committee note to Rule 4(m) of the 1993 amendments to the Federal Rules of Civil Procedure (good cause includes instances where “defendant is evading service.”). The Plaintiff was reasonable in his effort to serve, and has therefore established good cause for his failure to serve the named Defendants.

Furthermore, the individually named Defendants assert no prejudice resulting from the delay. While the individual Defendants’ were not formally served with the complaint, it only stands to reason that in its attempt to defend the suit, the United States Attorney and the other Defendants have made these parties aware of the suit. Indeed, if the named Defendants were not notified, it is at least partially the responsibility of the Coast Guard, the party having knowledge of the suit and the whereabouts of the individuals involved, and the United States Attorney’s Office, who prosecuted the criminal ease against Mr. Blessinger for assault on the individual Defendants.3 “The court has the right to expect reasonable assistance from members of its bar.” Bloomer, 1994 WL 92388, at *3.

Extensions of the service requirement also may be warranted in some eases where the statute of limitations has expired, as it has in this case, and the Plaintiff would be denied the opportunity to litigate a potentially meritorious claim. See Advisory Committee Note to Rule 4(m) of the 1993 Amendments to the Federal Rules of Civil Procedure [hereinafter “Committee Note”] (“Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action.”).

The government waited to file the present motion to dismiss after the applicable statute of limitations expired, when it could have filed at any time beyond the 120 day service expiration date. Such tactics are greatly disfavored by courts and generally interpreted as a method to dismiss a suit without having to address its merits.

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Bluebook (online)
174 F.R.D. 29, 38 Fed. R. Serv. 3d 1328, 1997 U.S. Dist. LEXIS 15952, 1997 WL 413698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blessinger-v-united-states-nyed-1997.