New York District Court Uses Discretion, Allows Pro Se Litigant to Perfect Service

Edmund Sanderson owned a house in Plattsburgh, New York. On January 7, 2014, he discovered water and mold damage at his home. He then notified his insurance carrier, First Liberty Insurance Corporation. After several months of negotiating, Sanderson realized filing a lawsuit was the only option he had.

On January 6, 2016, he filed a Summons with Notice in Supreme Court, Clinton County against “Liberty Mutual Insurance” but did not serve the summons on the Defendant. On May 4, 2016, he filed an Amended Summons with Notice under the same index number naming “First Liberty Insurance Corporation” as the defendant and then served defendant. On June 6, 2016, First Liberty removed the action to federal district court, and then moved to dismiss the action under Federal Rule of Civil Procedure 12(b)(4) and (6).¹

First Liberty stated the whole action must be dismissed because Sanderson did not bring the action within two-years of the date of loss as stated in the policy as Sanderson’s original filing included the trade name of the company and was not even served. Sanderson responded by outlining his diligent efforts to obtain the correct name for the defendant and to file the action pro se.

In dismissing First Liberty’s motion,² the court noted that under FRCP 4, while removal does not automatically restart the clock for timely service or keep a district court from considering a plaintiff’s previous delays in effecting service, it does allow a district court discretion to permit service to be completed, or new process issued, in a removed case under the Rule.

The court noted that under 28 U.S.C. § 1448:

[A] district court has discretion to allow service to be completed, or new process issued, in a removed case, pursuant to Rule 4 “in the same manner as in cases originally filed in such district court” where “any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective.”³

Rule 4(m) permits a district court “to extend the deadline for the service of a summons and complaint even without proof of good cause to excuse a plaintiff’s service default.”⁴ By using the factors enumerated in Zapata v. City of New York,⁵ the court concluded that the factor’s weigh heavily in plaintiff’s favor.

First Liberty’s only defense was that they would be forced to litigate this action after the limitations period had expired. The court noted that argument has been rejected by the Consiglio case and several others. The court denied defendant’s motion, granted plaintiff’s motion for an extension of time to perfect service and directed defendant to answer the complaint in accordance with the federal rules.

I leave you with a semi-relevant quote from Bob Costas:

Baseball is a human enterprise. Therefore, by definition, it’s imperfect, it’s flawed, it doesn’t embody perfectly everything that’s worthwhile about our country or about our culture. But it comes closer than most things in American life.

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¹ FRCP 12(b)(4) references insufficient process, i.e., incorrect summons. FRCP 12(b)(6) is a failure to state a cause of action.
² Sanderson v. First Liberty Ins. Corp., No. 16-644, 2017 WL 1403274 (N.D. NY Apr. 19, 2017).
³ Sanderson, at 2.
⁴ See Consiglio v. Ward Trucking, LLC, No. 11-6100, 2012 WL 4498895, at *2 (E.D. NY Sept. 27, 2012).
⁵ Zapata v. City of N.Y., 502 F.3d 192 (2d Cir. 2007). The decision stated the court should weigh the impact that a dismissal or extension would have on the parties and consider factors such as the statute of limitations bar, the diligence of the plaintiff in attempting to serve, the prejudice to the defendant, and defendant’s actual notice of the lawsuit.