06-1059-cv
Zapata v. City of New York


 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                              August Term, 2007
 5
 6
 7    (Argued: August 29, 2007             Decided: September 20, 2007)
 8
 9                            Docket No. 06-1059-cv
10
11    - - - - - - - - - - - - - - - - - - - -x
12    ANDIE ZAPATA,
13
14                       Plaintiff-Appellant,
15
16                -v.-
17
18    THE CITY OF NEW YORK and CORRECTION
19    OFFICER “JOHN” MORAN, Shield Number
20    Unknown,
21
22                       Defendants-Appellees.
23
24    - - - - - - - - - - - - - - - - - - - -x
25
26          Before:          JACOBS, Chief Judge, KATZMANN, and HALL,
27                           Circuit Judges.
28
29          Appeal from a judgment entered on February 2, 2006 in

30    the United States District Court for the Southern District

31    of New York (Brieant, J.), dismissing a § 1983 complaint

32    alleging assault by a corrections officer on a prisoner.

33    The question on appeal concerns the dismissal as to Officer

34    Moran for failure to effect timely service under Rule 4(m):

35    did the district court abuse its discretion by dismissing
1    without a discretionary extension of the service period

2    where the claim was time-barred absent such an extension?

3        We affirm.

 4                           TRACIE A. SUNDACK, Tracie A. Sundack
 5                           & Associates, LLC, White Plains, NY,
 6                           for Plaintiff-Appellant.
 7
 8                           SUSAN PAULSON, Assistant Corporation
 9                           Counsel (Francis F. Caputo, on the
10                           brief ), for Michael A. Cardozo,
11                           Corporation Counsel of the City of
12                           New York, for Defendants-Appellees.
13
14   DENNIS JACOBS, Chief Judge:

15       Andie Zapata sues the City of New York and a

16   corrections officer under 42 U.S.C. § 1983, alleging that he

17   was assaulted at the Rikers Island correctional facility by

18   one Officer Moran.   He appeals from a judgment of the United

19   States District Court for the Southern District of New York

20   (Brieant, J.) insofar as it dismissed Zapata’s claim against

21   Officer Moran for failure to effect timely service under

22   Federal Rule of Civil Procedure 4(m) without granting a

23   discretionary extension.   Zapata argues that this was an

24   abuse of discretion (notwithstanding his failure to show

25   good cause) because the denial of an extension rendered




                                   2
1    Zapata’s claims time-barred. 1

2        We join several other circuits and hold that district

3    courts may exercise their discretion to grant extensions

4    under Rule 4(m) absent a showing of good cause under certain

5    circumstances; but here, we decline to vacate for abuse of

6    discretion because Zapata not only failed to show good cause

7    but advanced no colorable excuse whatsoever for his neglect.

8

9                              BACKGROUND

10       On June 27, 2002 (according to the complaint) Officer

11   Moran assaulted Zapata in the inmate holding pen at the Anna

12   M. Kross Center on Rikers Island, resulting in serious

13   bodily injury.   On September 5, 2002, Zapata filed an

14   administrative claim with the City complaining that he had

15   been “assaulted by C.O. Moran #76079” at the “C-95 AMKC

16   clinic waiting area.”

17       More than two years later (on May 18, 2005) Zapata

18   filed a complaint in the district court, naming the City and

19   Officer Moran as defendants in a suit under 42 U.S.C. § 1983




          1
            Zapata does not appeal from the dismissal of his
     claims against the City.
                                      3
1    and state common law; the complaint alleged that it was the

2    policy, custom and practice of the City to inadequately

3    supervise, train and discipline their officers. 2      Zapata

4    served the City with a summons and complaint on June 2,

5    2005.       On June 27, 2005 (coincidentally, the day the three-

6    year statute of limitations for Zapata’s § 1983 claims would

7    have run had the complaint not been filed), 3 the City sought

8    a 60-day enlargement of the time in which to file an answer.

9    In its letter to the court, the City noted that Officer

10   Moran had not yet been served.        The City filed its answer on

11   August 22, 2005; again, the City stated that, to its

12   knowledge, Officer Moran had not yet been properly served.

13   At an initial conference on September 16, 2005, Zapata’s



             2
            42 U.S.C. § 1983 imposes liability on any person who
     under color of state law “subjects . . . any citizen of the
     United States or other person within the jurisdiction
     thereof to the deprivation of any rights, privileges, or
     immunities secured by the Constitution and laws” of the
     United States. Municipalities may only be held liable under
     § 1983 for the acts of their employees if the deprivation
     results from a policy or custom of the municipality. See
     generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658
     (1978).
             3
            “In section 1983 actions [within New York], the
     applicable limitations period is . . . three years.” Pearl
     v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002).


                                       4
1    counsel asked the City for Officer Moran’s work location.

2    On September 19, 2005, Zapata’s counsel forwarded a copy of

3    the summons and complaint by express mail to a process

4    server who served Officer Moran at Riker’s Island (the

5    location of the 2002 incident).   Federal Rule of Civil

6    Procedure 4(m) provides that actions are subject to

7    dismissal without prejudice unless service is made within

8    120 days.   Zapata’s service on Officer Moran was therefore

9    effected four days beyond the service period, and 84 days

10   after the expiration of the original limitations period. 4

11       The City moved to dismiss the Complaint on November 2,

12   2005, on the grounds that all of Zapata’s allegations

13   against the City either failed to state a claim or were

14   time-barred, and that Zapata’s claims against Officer Moran

15   were subject to dismissal for lack of timely service and

16   should be dismissed with prejudice as time-barred because

17   the statute of limitations had run since the filing of the


          4
            “[T]he statute of limitations for the underlying
     claim is tolled during [Rule 4’s 120-day service] period.”
     Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990).
     But if the plaintiff’s action is dismissed for a failure to
     serve within 120 days, “the governing statute of limitations
     again becomes applicable, and the plaintiff must refile
     prior to [its] termination . . . .” Id.
                                   5
1    complaint.     On November 23, 2005, Zapata responded to the

2    City’s motion to dismiss and cross-moved for an extension,

3    nunc pro tunc, of the time in which to serve Officer Moran.

4    Zapata claimed that he was unaware of Officer Moran’s first

5    name, badge number or work location when he filed the

6    complaint.     The City’s reply memorandum attached Zapata’s

7    September 2002 administrative claim form, which lists

8    Officer Moran’s badge number and work location.     In a

9    memorandum in further support of the cross-motion, Zapata’s

10   counsel explained that she did not know of the existence of

11   the claim form until she received the City’s reply, and she

12   argued that the City should have included a copy of the

13   claim form in its initial disclosures.

14       Zapata’s memoranda (in opposition to the motion to

15   dismiss and in further support of the cross-motion) argued

16   that the service period should be extended either for good

17   cause or in light of the harsh application of the statute of

18   limitations.     According to Zapata’s memoranda, the 1993

19   Amendments to Rule 4 allowed district courts to grant

20   extensions even in the absence of good cause.

21       By memorandum opinion on January 31, 2006, the court



                                     6
1    dismissed Zapata’s claims against the City (a decision which

2    Zapata does not challenge on appeal) and dismissed Zapata’s

3    claims against Moran as time-barred and declined to grant

4    Zapata an extension of the service period:

 5            Proof of service . . . confirms this service,
 6            four days beyond the 120 day period provided
 7            in Rule 4, Fed. R. Civ. P. The Statute of
 8            Limitations for the Constitutional tort sued
 9            on expired on June 28, 2005. Service of
10            process on Moran made within 120 days would
11            have related back to the filing of the lawsuit
12            on May 18, 2005 and would have been timely.
13            Prejudice is assumed in the case of
14            individuals sued after the Statute of
15            Limitations has run. Such cases differ from
16            those situations cited by Plaintiff where the
17            claim itself is not time-barred, but service
18            is late under Rule 4. . . . The case is
19            dismissed as to defendant Moran as time-
20            barred.
21
22   Zapata v. City of New York, No. 05 Civ. 4799, slip op. at 2-

23   4 (S.D.N.Y. Jan. 31, 2006).      Zapata’s cross-motion to extend

24   the service period nunc pro tunc, which the district court

25   described as a “[c]ross-Motion . . . for an extension of

26   time to serve papers in opposition to the motion to

27   dismiss,” was deemed moot in light of the resolution of the

28   motion to dismiss.   Id. at 1.

29       This timely appeal followed.

30


                                      7
1                              DISCUSSION

2                                    I

3        Federal Rule of Civil Procedure 4(m) governs both (1)

4    the dismissal of actions for untimely service of process and

5    (2) extensions of the time in which service may be effected.

6    We review for an abuse of discretion a district court’s Rule

7    4(m) dismissal for failure to serve process.   See Thompson

8    v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002).

9        Under Rule 4(m),

10            [i]f service of the summons and complaint is not
11            made upon a defendant within 120 days after the
12            filing of the complaint, the court . . . shall
13            dismiss the action without prejudice . . . or
14            direct that service be effected within a specified
15            time; provided that if the plaintiff shows good
16            cause for the failure, the court shall extend the
17            time for service for an appropriate period.
18
19       Prior to 1993, the substance of this rule appeared in

20   the former Rule 4(j), which provided that if service was not

21   made within 120 days, and the serving party “cannot show

22   good cause why such service was not made within that period,

23   the action shall be dismissed as to that defendant without

24   prejudice.”   The Advisory Committee notes to the 1993

25   Amendment disclosed the purpose of the amendment:

26            The new subdivision explicitly provides that

                                 8
 1            the court shall allow additional time if there
 2            is good cause for the plaintiff’s failure to
 3            effect service in the prescribed 120 days, and
 4            authorizes the court to relieve a plaintiff of
 5            the consequences of an application of this
 6            subdivision even if there is no good cause
 7            shown . . . . Relief may be justified, for
 8            example, if the applicable statute of
 9            limitations would bar the refiled action, or
10            if the defendant is evading service or
11            conceals a defect in attempted service.
12
13       Before the 1993 Amendments, we generally did not

14   approve an extension absent a showing of good cause, even

15   when a statute of limitations would bar the re-filed action

16   and effectively convert the dismissal without prejudice

17   under Rule 4(m) into a dismissal with prejudice.     See, e.g.,

18   McGregor v. United States, 933 F.2d 156 (2d Cir. 1991);

19   Frasca v. United States, 921 F.2d 450 (2d Cir. 1990).     But

20   since 1993, those of our sister circuits that have

21   considered the issue have heeded the Advisory Committee and

22   held that district courts have the discretion to grant

23   extensions of the service period even where there is no good

24   cause shown; and this is consistent with a passing comment

25   from the Supreme Court on the issue.   See, e.g., Henderson

26   v. United States, 517 U.S. 654, 662-63 (1996) (“[I]n 1993

27   amendments to the Rules, courts have been accorded



                                  9
1    discretion to enlarge the 120-day period ‘even if there is

2    no good cause shown.’” (quoting Fed. R. Civ. P. 4(m) Adv.

3    Comm. Notes)); Horenkamp v. Van Winkle & Co., 402 F.3d 1129,

4    1132-33 (11th Cir. 2005); Panaras v. Liquid Carbonic Indus.,

5    94 F.3d 338, 340-41 (7th Cir. 1996); Espinoza v. United

6    States, 52 F.3d 838, 840-41 (10th Cir. 1995); Petrucelli v.

7    Bohringer and Ratzinger, Gmbh, 46 F.3d 1298, 1304-08 (3d

8    Cir. 1995).

9        While we have not decided the question, our opinion in

10   Bogle-Assegai v. Connecticut expressed skepticism about

11   granting extension without good cause: we rejected as

12   “unsupported by any authority of this Court” the contention

13   that plaintiff “was not required to show good cause in order

14   to be given an extension of time to make proper service.”

15   470 F.3d 498, 508 (2d Cir. 2006).   This observation was

16   linked to the factual context of that case:   “Bogle-Assegai,

17   who was neither a pro se litigant nor incarcerated, made no

18   showing whatever as to any effort on her part to effect

19   personal service . . . .   And . . . she also made no effort

20   to show good cause for her failure and never requested an

21   extension of time [while] the case was pending after she



                                   10
1    first learned of the [defendants’] objections to service.”

2    Id. at 509.   Thus Bogle-Assegai declined to vacate because

3    the plaintiff failed to advance any cognizable excuse for

4    neglect--even one falling short of good cause.    We therefore

5    do not read that decision to hold categorically that good

6    cause is required in every case for an extension of the

7    service period under Rule 4(m).    Such a reading of Bogle-

8    Assegai would be inconsistent with the wording of the rule

9    and the views of the Supreme Court.

10       We hold that district courts have discretion to grant

11   extensions even in the absence of good cause.    But this

12   holding does not in itself resolve Zapata’s appeal.

13

14                                 II

15       Zapata complains that the district court failed to

16   consider the impact of the 1993 amendments on the former

17   Rule 4(j); this contention necessitates closer attention to

18   the two-clause structure of the post-1993 Rule 4(m), which

19   provides that if service is not effected within 120 days,

20

21       [1] “the court . . . shall dismiss the action without



                                   11
1        prejudice . . . or direct that service be effected

2        within a specified time”; but that

3

4        [2] “if the plaintiff shows good cause for the failure,

5        the court shall extend the time for service for an

6        appropriate period.”

7
8
9        Some of our sister circuits have characterized the

10   second clause to govern “mandatory” good cause extensions

11   and the first clause to govern “discretionary” extensions in

12   the absence of good cause.   See Coleman v. Milwaukee Bd. of

13   Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002); De Tie v.

14   Orange County, 152 F.3d 1109, 1112 n.5 (9th Cir. 1998);

15   Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997);

16   Espinoza, 52 F.3d at 841.

17       It is clear under the second clause of Rule 4(m) that

18   an extension is always warranted upon a showing of “good

19   cause,” because the rule commands that an “appropriate”

20   extension “shall” be granted upon such a showing.     But it is

21   perhaps misleading to describe the provision as “mandatory.”

22   After all, the district court’s determinations on whether



                                   12
1    good cause is present (and, if so, how long an extension

2    would be appropriate) are exercises of discretion.    See

3    Thompson, 309 F.3d at 110; Troxell v. Fedders of N. Am.,

4    Inc., 160 F.3d 381, 382-83 (7th Cir. 1998).

5        The first clause of Rule 4(m), which makes no mention

6    of good cause, grants discretion to district courts in a

7    backhanded fashion by dictating that they “shall” take a

8    certain action once 120 days have passed without service:

9    they must decide to dismiss . . . or decide not to dismiss.

10   But no criteria for this decision are supplied in the rule

11   itself; this silence commits extensions in the absence of

12   good cause, like determinations on the presence of good

13   cause, to the sound discretion of the district court.

14       Some circuits require district courts to engage in a

15   formal two-step inquiry to first evaluate good cause and

16   then demonstrate their awareness that an extension may be

17   granted even in the absence of good cause.    See, e.g.,

18   Panaras, 94 F.3d at 340-41; Petrucelli, 46 F.3d at 1305.     In

19   our view, whether such a bifurcated inquiry would be useful

20   is a question best left to the district court: the two steps

21   inevitably involve a weighing of overlapping equitable



                                  13
1    considerations; and we owe deference to the district court’s

2    exercise of discretion whether or not it based its ruling on

3    good cause.   So we require no mechanical recitation of the

4    implications of the 1993 Amendment.

5        Where, as here, good cause is lacking, 5 but the

6    dismissal without prejudice in combination with the statute

7    of limitations would result in a dismissal with prejudice,

8    we will not find an abuse of discretion in the procedure

9    used by the district court, so long as there are sufficient

10   indications on the record that the district court weighed

11   the impact that a dismissal or extension would have on the

12   parties.

13       Here, there are abundant indications that the district

14   court was made aware of the scope of its discretion: Zapata

15   argued to the district court both that he had shown good

16   cause and that the time-bar justified an extension even in

17   the absence of good cause; acknowledging Zapata’s citation

18   of the latter principle, the district nonetheless denied an



          5
            Zapata’s brief to this Court argues solely that the
     district court failed to consider a “discretionary”
     extension under the 1993 Amendments to Rule 4, and Zapata
     has therefore abandoned any claim to an extension for good
     cause.
                                   14
1    extension based on the prejudice that Officer Moran would

2    suffer by being forced to defend a time-barred action.

3

4                                 III

5        Zapata argues that, aside from the procedure the

6    district court utilized, it was required to grant an

7    extension in light of the absence of prejudice to Officer

8    Moran and the great prejudice to Zapata arising from the

9    operation of the statute of limitations. 6

10       As we have held, a district court may grant an

11   extension in the absence of good cause, but it is not

12   required to do so.   See Coleman, 290 F.3d at 934.       Moreover,

13   our holding in Bogle-Assegai suggests that, before we will

14   even consider vacating a Rule 4(m) dismissal for abuse of

15   discretion, the plaintiff must ordinarily advance some

16   colorable excuse for neglect.        470 F.3d at 509 (declining to

17   consider plaintiff’s argument that she was not required to

18   show good cause because “[i]n any event, [the plaintiff]




          6
            Zapata raises no explicit challenge to the district
     court’s decision to deny an extension of the service period
     and simultaneously to dismiss his action with prejudice as
     time-barred. We therefore do not address the issue.
                                     15
1    made no showing whatever as to any effort on her part to

2    effect personal service[,] made no effort to show good cause

3    for her failure and never requested an extension of time

4    [while] the case was pending”); see also Coleman, 290 F.3d

5    at 934-35 (citing the plaintiff’s failure to properly effect

6    timely serve “with no even colorable justification” after

7    holding that “the fact that the balance of hardships favors

8    the plaintiff does not require the district judge to excuse

9    the plaintiff’s failure to serve the complaint and summons

10   within the 120 days provided by the rule” (emphasis

11   added)). 7

12        Zapata takes issue with the district court’s statement

13   that prejudice to Officer Moran was “assumed” because the

14   statute of limitations had run.   According to Zapata, this

15   reasoning was erroneous and constituted an abuse of

16   discretion, because it is the prejudice to the plaintiff

          7
            Because Zapata was denied an extension, we express no
     opinion on what circumstances will indicate an abuse of
     discretion where a district court has granted an extension
     without a showing of good cause. See generally Efaw v.
     Williams, 473 F.3d 1038, 1040-41 (9th Cir. 2007). While we
     read Bogle-Assegai to indicate that this Court will not
     disturb a district court’s dismissal absent some colorable
     excuse raised by the plaintiff, nothing in our opinion
     should be read as a per se rule that district courts must
     require such an excuse in all cases.
                                  16
1    that would most naturally be “assumed” where a dismissal

2    without prejudice would time-bar the action.        This is a fair

3    point; the Advisory Committee Notes to the 1993 Amendments

4    specifically mention that an extension might be justified

5    where statute of limitations would bar the refiling of an

6    action.     And at least one circuit has held that district

7    courts may not deny an extension solely based on the

8    prejudice to the defendant arising from the statute of

9    limitations.     See Boley, 123 F.3d at 759.     But we decline to

10   adopt such a per se rule on the matter.        It is obvious that

11   any defendant would be harmed by a generous extension of the

12   service period beyond the limitations period for the action,

13   especially if the defendant had no actual notice of the

14   existence of the complaint until the service period had

15   expired; and it is equally obvious that any plaintiff would

16   suffer by having the complaint dismissed with prejudice on

17   technical grounds--this is no less true where the technical

18   default was the result of pure neglect on the plaintiff’s

19   part.     But in the absence of good cause, no weighing of the

20   prejudices between the two parties can ignore that the

21   situation is the result of the plaintiff’s neglect.        Thus,



                                     17
1    while we disagree with the district court’s formulation that

2    a dispositive degree of prejudice to the defendant is

3    “assumed” when statute of limitations would bar the re-filed

4    action, we leave to the district courts to decide on the

5    facts of each case how to weigh the prejudice to the

6    defendant that arises from the necessity of defending an

7    action after both the original service period and the

8    statute of limitations have passed before service.

9        In any event, Zapata’s assertion that Officer Moran

10   suffered no prejudice from service only a few days outside

11   the period of service is misleading; while the limitations

12   period was tolled for the service period, prejudice does not

13   toll.   Nothing in the record besides the 2002 incident

14   itself suggests Officer Moran had any notice that the action

15   was forthcoming (much less already pending), and service was

16   effected almost three months after the limitations period

17   would have run had the complaint never been filed.

18       Even assuming the prejudice to Officer Moran was

19   slight, and taking into account the district court’s

20   unfortunate choice of language in denying an extension, we

21   find no abuse of discretion.    Like the plaintiff in Bogle-



                                    18
1    Assegai, Zapata made no effort to effect service within the

2    service period, neglected to ask for an extension within a

3    reasonable period of time, and has advanced no cognizable

4    excuse for the delay.   Zapata’s only justification--that he

5    was unaware of Officer Moran’s badge number and the location

6    at which he could be served--is flatly contradicted by the

7    record.   Zapata filed an administrative claim in 2002--

8    nearly three years before he filed his complaint--that

9    contained a cursory description of the incident along with

10   Officer Moran’s last name, badge number, and work location

11   (the Anna M. Cross Center at Riker’s Island).   In spite of

12   Zapata’s possession of this information, he neither made any

13   attempt to serve Officer Moran at the Rikers Island facility

14   during the 120-day service period nor made any attempt

15   during that period to ask the Court for an extension of time

16   in which to serve Officer Moran.   Nothing on the record

17   indicates that Zapata ever requested any information from

18   the City on the issue even though the City pointed out the

19   failure to serve Officer Moran when it made its request for

20   an enlargement of time to answer (nearly three months before

21   the end of the service period) and when it served its answer



                                   19
1    (more than three weeks before the end of the service

2    period).    Zapata finally attempted to serve Officer Moran at

3    Rikers Island after the 120-day service period had passed,

4    and even then, rather than immediately asking the district

5    court to bless the untimely service by granting an

6    extension, Zapata waited two months to seek an extension

7    nunc pro tunc after receiving the City’s motion to dismiss.

8    While Zapata initially responded to the City’s motion to

9    dismiss by claiming to have been unaware of Officer Moran’s

10   badge number and work location, Zapata’s later papers and

11   his brief to this Court state that Zapata’s counsel was

12   unaware that Zapata knew Officer Moran’s badge number;

13   counsel avers that she assumed that the City would

14   gratuitously supply the information necessary to effect

15   service which she could not (or would not) obtain from her

16   client.    In this context, a description of poor

17   communication between client and counsel is a confession of

18   neglect, not an excuse for it.      On these facts, we find no

19   abuse of discretion in the district court’s judgment. 8

          8
            Zapata also contends that we should vacate the
     district court’s decision because of its alleged failure to
     correctly describe Zapata’s motion to extend the service
     period nunc pro tunc--the district court’s decision can be
                                    20
1

2                               CONCLUSION

3

4       For foregoing reasons, the judgment of the district

5   court is hereby AFFIRMED.

6




    read to erroneously describe the cross-motion as seeking an
    extension of time in which to oppose the City’s motion to
    dismiss. (In our view, the district court’s ambiguous
    language can also be read to describe the cross-motion for
    an extension as being a free-standing opposition to the
    motion to dismiss that is moot in light of the district
    court’s incorporation of the Rule 4 issue into its ruling on
    the motion to dismiss.) Whether or not the district court
    correctly described the motion, it confronted the merits of
    the issue under Rule 4 and made reference to Zapata’s
    citations to authority on the propriety of an extension. So
    we are confident that the district court would have reached
    the same conclusion regardless of the manner in which it
    described Zapata’s motion, and there is no need for a remand
    on this basis.
                                    21
