Gerard v. 1199 National Benefit Funds

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TED GERARD, Plaintiff, -against- 1:23-CV-7950 (DEH) 1199 NATIONAL BENEFIT FUNDS; 1199 SEIU ORDER OF SERVICE BENEFIT AND PENSION FUNDS; KEVIN HURLEY; RICHARD WHITTER, Defendants. DALE E. HO, United States District Judge: Plaintiff Ted Gerard, of Iselin, New Jersey, who appears pro se, brings this action under the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, as well as claims under state law, including claims under the New York State and City Human Rights Laws. He sues: (1) 1199 National Benefit Funds; (2) 1199 SEIU Benefit and Pension Funds; (3)Kevin Hurley; and (4) Richard Whitter. By order dated October 18, 2023, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. The Court directs service on the defendants. DISCUSSION A. Service on the defendants Because Plaintiff has been granted permission to proceed IFP, he 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

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 served summonses and the complaint on the defendants until the Court reviewed the complaint and ordered that summonses be issued for the defendants. The Court (2d Cir. 2013); see also § 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). To allow Plaintiff to effect service on the defendants 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 each defendant. The Clerk of Court is further instructed to issue summonses for the defendants, and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the defendants. If the complaint is not served on the defendants within 90 days after the date the summonses are issued for the defendants, 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 his address changes, and the Court may dismiss the action if Plaintiff fails to do so.

B. New York Legal Assistance Group Plaintiff may consider contacting the New York Legal Assistance Group (“NYLAG”), which maintains a free clinic for pro se litigants in the Southern District of New York that is staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is operated by a private organization; it is not part of, or operated by, the court. It cannot accept filings on behalf of the court, which must still be made by

therefore extends the time to serve the defendants until 90 days after the date that summonses are issued for the defendants. any pro se party through the court’s Pro Se Intake Unit. A copy of the flyer with details of the NYLAG clinic is attached to this order. CONCLUSION The Court directs the Clerk of Court to mail an information package to Plaintiff. The Court also directs the Clerk of Court to issue summonses for the defendants, complete USM-285 forms with the addresses of the defendants, and deliver all documents necessary to effect service on the defendants to the U.S. Marshals Service. A flyer from NYLAG 1s attached to this order. SO ORDERED. Dated: October 24, 2023 New York, New York LL. Le DALEE.HOU United States District Judge

DEFENDANTS AND SERVICE ADDRESSES 1. 1199 National Benefit Funds 498 Seventh Avenue Fifth Floor New York, New York 10018 2. 1199 SEIU Benefit and Pension Funds 498 Seventh Avenue Fifth Floor New York, New York 10018 3. Kevin Hurley Assistant Director of Human Resources 498 Seventh Avenue Fifth Floor New York, New York 10018 4. Richard Whitter Director of Human Resources 498 Seventh Avenue Fifth Floor New York, New York 10018 = = eee 14 ESE 7 1 New York ME Legal Assistance Group Southern District or New York

The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York provides free limited legal assistance to individuals who are representing themselves or planning to represent themselves in civil lawsuits in federal court in Manhattan and White Plains. The clinic is staffed by attorneys, law students, and paralegals. Information given to clinic staff is confidential.

Clinic Staff Can: Clinic Staff Cannot: Advise on filing cases in federal court e Assist with federal civil cases that belong in a including on the issue of whether a = 3 different federal court, such as the Eastern District of should be filed in the Southern District of New York, which covers of New York, which covers New York or somewiierocisd Brooklyn, Queens, Staten Island, and Nassau and Provide legal advice in response to questions Suffolk Counties; that come up at any stage of litigation; e Assist with an appeal of your federal case; Assist in getting additional information or e Assist with state court cases, bankruptcy court cases, research into the legal issue in your case; or criminal cases; oo Review and explain court orders and filings e Pay any of the costs associated with filing or by your opponent, and provide an overview of defending a lawsutt in federal court; the federal legal process in civil cases e File documents with the court on your behalf; generally; e Appear on your behalf other than representation at a Assist with motions, discovery, and strategy; mediation through the Southern District’s Alternative Assist with getting ready for depositions, Dispute Resolution Program, a court-ordered pretrial conferences, mediations, and court settlement conference, or, in appropriate cases, a appearances; deposition; Provide forms and instructions manuals; ° Write court documents for you, or In appropriate cases, help you retain bono ° Conduct an investigation into the facts of your case. counsel; Inappropriate cases, represent you in a Clinic Staff May Decline Assistance If: mediation through the Southern District’s Alternative Dispute Resolution Program, ora NYLAG has already given advice to your opponent; court-ordered settlement conference; e Your legal problem is beyond the scope of matters Inappropriate cases, represent you at a handled by the clinic; deposition; and e Providing assistance would conflict with the New York Inappropriate cases, provide referrals to Rules of Professional Conduct; other agencies and organizations that provide e Your income and/or assets are high enough to allow you civil legal services and/or social services. to retain private counsel; or e NYLAG determines, in its professional legal judgement, that (i) you have refused to cooperate with the Clinic’s counsel or follow the Clinic’s advice; (ii) any assistance would be unreasonably difficult for NYLAG to carry out; or (iii) your case is or will become frivolous, unreasonable, groundless, or without merit.

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