18‐2117
Tolchin v. County of Nassau


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 17th day of May, two thousand
nineteen.

PRESENT: DENNIS JACOBS,
         PIERRE N. LEVAL,
         CHRISTOPHER F. DRONEY,
              Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
SCOTT A. TOLCHIN, HEIDI TOLCHIN,
                            Plaintiffs‐Appellants,

                  v.                                                   18‐2117

COUNTY OF NASSAU, NASSAU
COUNTY POLICE DEPARTMENT,
DETECTIVE ROBIN ARCHBOLD, IN
HER INDIVIDUAL CAPACITY, POLICE
OFFICERS JOHN DOE 1 THROUGH


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JOHN DOE 10, (THE NAME “JOHN
DOE” BEING FICTITOUS, AS THE
TRUE NAMES ARE PRESENTLY
UNKNOWN), IN THEIR INDIVIDUAL
AND IN THEIR OFFICIAL CAPACITIES,
NASSAU COUNTY DISTRICT
ATTORNEY’S OFFICE,
                            Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X

FOR APPELLANTS:                                                  William K. Joseph (Louis F. Chisari,
                                                                 on the brief), Marcote & Associates,
                                                                 P.C., Hicksville, NY.

FOR APPELLEES:                                                   Adam M. Moss (Robert F. Van der
                                                                 Waag, Deputy County Attorney, on
                                                                 the brief), for Jared A. Kasschau,
                                                                 Nassau County Attorney, Mineola,
                                                                 NY.

       Appeal from a judgment of the United States District Court for the Eastern
District of New York (Spatt, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.

       Scott Tolchin and Heidi Tolchin appeal from a judgment of the United
States District Court for the Eastern District of New York (Spatt, J.) dismissing
their complaint for untimely service of process. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues
presented for review.

      In March 2013, the plaintiffs hosted a birthday party for their 14‐year‐old
daughter at their home in Merrick, New York. During the party, Mr. Tolchin
was involved in a physical altercation with an individual who lived in the



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neighborhood, Robin Archbold, and who, unbeknownst to the plaintiffs, was an
off‐duty police detective. Police officers arrived at the Tolchins’ home, arrested
Mr. Tolchin, and brought him to the station house, where he was charged with
various offenses of which he was eventually found not guilty at trial. At the
station house, Mr. Tolchin fell in a poorly lit stairway and fractured six ribs.

       In March 2016, the plaintiffs filed a complaint in district court alleging
claims including false arrest, false imprisonment, excessive force, and malicious
prosecution. The district court clerk’s office rejected the proposed summons,
and plaintiffs took no further action. On October 19, 2016, seven months later,
the district court issued an electronic order noting that there had been no action in
the case and directing plaintiffs to provide a status report or risk closure for
failure to prosecute. Counsel for plaintiffs responded a week later by letter,
representing that upon issuance of the summons, defendants would be served
“expeditiously.” After rejecting two more proposed summonses filed by the
plaintiffs, the clerk’s office accepted a proposed summons on October 28, 2016.
Despite counsel’s representations to the court, nothing further was done to
effectuate service for nine months.

       In July 2017, more than 16 months after the complaint was filed, the district
court ordered the plaintiffs to appear and show cause why the case should not be
dismissed for failure to effect service on the defendants. The plaintiffs ultimately
effected service on July 28, 2017. Nevertheless, the district court granted a
motion by the defendants to dismiss the complaint for failure to timely serve
process under Federal Rule of Civil Procedure 4(m).

       “We review for an abuse of discretion a district court’s Rule 4(m) dismissal
for failure to serve process.” Zapata v. City of New York, 502 F.3d 192, 195 (2d
Cir. 2007). Rule 4(m) provides that “[i]f a defendant is not served within 90 days
after the complaint is filed, the court‐‐on motion or on its own after notice to the
plaintiff‐‐must dismiss the action without prejudice against that defendant or
order that service be made within a specified time.” Fed. R. Civ. P. 4(m).
However, “if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.” Id.




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       The plaintiffs do not contest that they lack good cause for their failure to
timely effect service. Instead, they argue that the district court should have
exercised its discretion to extend the time for service despite the lack of good
cause.

        “[A] district court may grant an extension in the absence of good cause, but
it is not required to do so.” Zapata, 502 F.3d at 197 (emphasis in original). The
plaintiffs have failed to make a showing of a colorable excuse for their untimely
service. Instead, they concede that the more than 16‐month delay in service was
caused by their counsel’s repeated neglect. The plaintiffs argue that an extension
was nonetheless warranted because they face prejudice in the absence of an
extension‐‐i.e., the denial will result in their claims being barred by the statute of
limitations‐‐and because the defendants would face limited prejudice if an
extension were granted, as they had actual notice of the claims asserted in the
complaint. But without a colorable excuse for the failure to timely serve process,
“no weighing of the prejudices between the two parties can ignore that the
situation is the result of the plaintiff’s neglect.” See Zapata, 502 F.3d at 198.
The district court considered in a written opinion the prejudice that each party
would face from a dismissal or extension, and reasonably determined that no
extension was warranted. We accordingly see no abuse of discretion in the
district court’s dismissal pursuant to Rule 4(m).

       We have considered the plaintiffs’ remaining arguments and find them to
be without merit. For the foregoing reasons, we AFFIRM the judgment of the
district court.

                                       FOR THE COURT:
                                       CATHERINE O’HAGAN WOLFE, CLERK




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