Free Order on Motion for Extension of Time - District Court of Connecticut - Connecticut

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I Case 3:03-cv-01049-RNC Document 6 Filed O2/26/2004 Page1 of 3 I
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V. : CASE NO. 3:03CV1049(RNC) I
POSTMASTER, UNITED STATES POSTAL I
SERVICE and MPO RON DEMAIDA, :
individually and in his official : T
capacity, :
Defendants. Q I
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RULING AND ORDER I
On June 12, 2003, plaintiff filed this action pursuant to I
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e eg 3
seg., against her employer, the United States Postal Service, and I
a coworker, Ron Demaida, alleging that Demaida sexually harassed I
her and the Postal Service retaliated against her for complaining
about the harassment.1 On December 17, 2003, plaintiff was
ordered to show why the action should not be dismissed for
failure to serve the complaint within the 120-day period
permitted by Fed. R. Civ. P. 4(I). In response, plaintiff has
filed a motion seeking an extension of time to make service.
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Plaintiff has not shown good cause for failing to comply with
the 120—day requirement. However, dismissing the complaint would
effectively preclude the plaintiff from pursuing her Title VII
claim because a refiled claim would be time—barred, a result that
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1 The complaint also alleges state law claims for I
intentional and negligent infliction of emotional distress,
breach of contract and negligent supervision.

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{ Case 3:03-cv-01049-RNC D0cument6 Filed O2/26/2004 Page20f3
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appears to be unduly harsh. Accordingly, the motion for extension
of time is granted.
Rule 4(m) of the Federal Rules of Civil Procedure provides
in relevant part: "If service of the summons and complaint is not
made upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own initiative after
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notice to the plaintiff, shall dismiss the action without I
prejudice as to that defendant or direct that service be effected i
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." An attorney's mistake does l
not constitute good cause for failure to make service in a timely
manner. gge Feingold v. Hankin, 269 F. Supp. 2d 268, 276
(S.D.N.Y. 2003); AIG Managed Market Neutral Fund v. Askin Capital
Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000).
In the present case, plaintiff's counsel states that service 4
was not made in accordance with Rule 4(m) because a temporary
employee in his office placed the complaint in a closed file,
where it became lost. Crediting this allegation, it falls well
short of showing good cause, for the temporary employee‘s error
in misplacing the complaint in no way prevented plaintiff's
counsel from fulfilling_his responsibility to monitor the i
progress of the case and ensure that service was made in a timely E
manner. Accordingly, the complaint is subject to dismissal.
In the absence of good cause for failure to effect service
within the prescribed period of 120 days, a district court has
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Case 3:03-cv-01049-RNC D0cument6 Filed O2/26/2004 Page30f3
I discretion to extend the time for service if "the applicable
y statute of limitations would bar the refiled action." Fed. R. U
Civ. P. 4(m) advisory committee's note. In this case, if I
f p1aintiff's Title VII claim were dismissed and refiled, the
refiled claim would be time—barred by 42 U.S.C. § 2000e—5(f).
Title VII claims are better disposed of on the merits, rather .
than on the basis of delay in service of process, at least when `
there is no undue prejudice to a defendant due to the delay.
Here, plaintiff alleges that she gave timely notice of her claim
to the defendants, so there appears to be no risk of causing g
undue prejudice to them.
Accordingly, plaintiff's motion for extension of time is 5
hereby granted and plaintiff is directed to serve the defendants 3
and return proof of service to the Clerk on or before March I2,
2004.
So Ordered.
Dated at Hartford, Connecticut this 25th day of February
2004.
Robert N. Chati ny
United States District Judge