Swainson v. Firstmark Services

• Court: District Court, S.D. New York
• Decided: May 31, 2022
• Docket: 1:21-cv-05380
• Status: Unknown

Opinion

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: eR RAYMOND SWAINSON, : Plaintiff, : : 21-cv-5380 (LJL) -v- : : ORDER FIRSTMARK SERVICES et al, : Defendants. : wee KX LEWIS J. LIMAN, United States District Judge: Plaintiff has filed a letter in response to the Court’s order to show cause at Dkt. No. 21. See Dkt. No. 22. In that letter, Plaintiff states that he has confirmed that Defendants Firstmark Services (“Firstmark”) and TransUnion, LLC (“TransUnion”) were timely served in state court but fails to provide evidence of that assertion or state whether service was perfected before the notice of removal was filed on June 17, 2021, Dkt. No. 1. It is hereby ORDERED that, by June 22, 2022, Plaintiff shall submit the referenced affidavits of service to this Court and clarify whether service was perfected prior to the notice of removal. Plaintiff also requests three weeks to serve Defendants Firstmark and TransUnion in the federal action because he was unaware that he was supposed to serve those parties. Dkt. No. 22. Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action without prejudice against the defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). “[I]f the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Jd. In addition, “[c]lourts have discretion to grant equitable relief through extensions for service in the absence of good cause.” Kogan v. Facebook, Inc., 334 F.R.D. 393, 404 (S.D.N.Y. 2020); see also Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007). When determining whether to grant such an extension, relevant considerations include: “(1) whether any applicable statutes of limitations would bar the action once refiled; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether defendant attempted to conceal the defect in service; and (4) whether defendant would be prejudiced by extending plaintiff's time for service.” Kogan, 334 F.R.D. at 404 (quoting DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 66 (S.D.N.Y. 2010)). “These factors are not dispositive,” Barbosa v. City of New York, 2018 WL 4625620, at *3 (S.D.N.Y. Sept. 26, 2018), and “[cJourts may take other equitable considerations into account,” Kogan, 334 F.R.D. at 404 (citation omitted). Plaintiff's request is granted. Plaintiff has failed to show good cause because Plaintiff

has not established that there were “circumstances beyond [his] control” that caused the lack of timely service and because “[a]n attorney’s ignorance of the rules, inadvertence, neglect, or mistake do not constitute good cause.” Feingold v. Hankin, 269 F. Supp. 2d 268, 276 (S.D.N.Y. 2003. The Court, however, will grant Plaintiff equitable relief, particularly because there is some indication on the docket that Defendant TransUnion had actual notice of the claims asserted and because of Plaintiff's pro se status. See Dkt. No. 14 at 2 (stating that counsel for Defendant Experian Information Solutions, Inc. spoke with counsel for TransUnion about the action). On the assumption that service of Defendants Firstmark and TransUnion was not perfected prior to removal, Plaintiff shall have until June 22, 2022 to effect service and to file proof of service with the Court. Plaintiff is also reminded that there is a legal clinic in this District that provides assistance, free of charge, to people who are parties in civil cases and do not have lawyers. The clinic is run by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or run by, the Court. An unrepresented party can contact NYLAG via https://nylag.org/gethelp or by calling (212) 659-6190.

SO ORDERED. □ pe * Dated: May 31, 2022 el MIE asm New York, New York LEWIS J. LIMAN United States District Judge