Herrera v. Avi Athletics LLC
- Vernon Broderick
- 1:24-cv-01814
- U.S. District Court · Southern District of New York
- 2
In Herrera v. Avi Athletics, Judge Broderick ordered Herrera to explain the failure to show service on Avi Athletics or face dismissal.
Edery Herrera and the similarly situated people he seeks to represent, as well as Avi Athletics LLC.
What happened
In Herrera v. Avi Athletics LLC, Edery Herrera sued Avi Athletics LLC on behalf of himself and other similarly situated people. The court said Herrera obtained a summons but had not filed proof that Avi Athletics had been served or taken other action to move the case forward.
The court ordered Herrera to file a letter of no more than three pages, supported by legal authority, explaining why the case should not be dismissed under the federal rule governing timely service. The court explained that good cause generally requires exceptional circumstances beyond the plaintiff's control, and that courts consider the plaintiff's diligence and any harm to the defendant from the delay.
Judge Vernon S. Broderick ordered Herrera to submit the letter by June 24, 2024, and warned that failing to submit it and demonstrate good cause would result in dismissal. The order itself did not dismiss the case.
The detailed version
- Herrera v. Avi Athletics LLC · No. 1:24-cv-01814
- Vernon Broderick
- June 17, 2024
Background
On March 8, 2024, Edery Herrera filed this action against Avi Athletics LLC on behalf of himself and other similarly situated people. Herrera obtained a summons on March 11, 2024. As of the order, however, Herrera had not filed an affidavit of service or taken any other action to prosecute the case.
Order to Show Cause
The court ordered Herrera to submit, by June 24, 2024, a letter of no more than three pages supported by legal authority. The letter had to demonstrate good cause for why the action should not be dismissed under Federal Rule of Civil Procedure 4(m), which concerns timely service of the summons and complaint.
The court explained that good cause generally exists only in exceptional circumstances in which the failure to serve process timely resulted from circumstances beyond the plaintiff's control. It also stated that courts consider the plaintiff's diligence in attempting proper service and any prejudice suffered by the defendant because of the delay. The court further explained that an attorney's inadvertence, neglect, mistake, or misplaced reliance does not constitute good cause.
Disposition
Judge Vernon S. Broderick ordered Herrera to submit the required letter and warned that failure to submit the letter and demonstrate good cause would result in dismissal of the action. The order did not itself dismiss the case.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.