Calcano v. April Hughes, Inc.
- Vernon Broderick
- 1:19-cv-09716
- U.S. District Court · Southern District of New York
- 2
In Calcano v. April Hughes, Inc., Judge Broderick ordered a showing of good cause for delayed service or warned the case would be dismissed.
Marcos Calcano's action against April Hughes, Inc., including the people he sought to represent, was placed at risk of dismissal unless he timely showed good cause for the failure to serve the defendant.
What happened
Marcos Calcano sued April Hughes, Inc. on behalf of himself and other similarly situated people. He filed the case on October 24, 2019, and obtained a summons on October 28, 2019.
The court found that Calcano had not filed proof that April Hughes, Inc. had been served or taken other action to prosecute the case. It ordered him to submit, by February 4, 2020, a letter of no more than three pages explaining why the case should not be dismissed for failure to serve the defendant within 90 days.
Judge Vernon S. Broderick warned that Calcano's failure to submit the letter and show good cause would result in dismissal. The order did not dismiss the case at that time.
The detailed version
- Calcano v. April Hughes, Inc. · No. 1:19-cv-09716
- Vernon Broderick
- Jan. 28, 2020
Background
Marcos Calcano brought this action against April Hughes, Inc. on behalf of himself and all other persons similarly situated. He filed the complaint on October 24, 2019, and obtained a summons on October 28, 2019.
Service and prosecution of the case
The court stated that Calcano had not filed an affidavit of service or taken any other action to prosecute the case. Under Federal Rule of Civil Procedure 4(m), a plaintiff generally must serve the defendant within 90 days after filing the complaint. The court explained that an extension based on “good cause” is generally available only in exceptional circumstances where the failure to serve resulted from circumstances beyond the plaintiff's control. It also noted that courts consider the plaintiff's diligence and any prejudice caused to the defendant, and that an attorney's inadvertence, neglect, mistake, or misplaced reliance does not establish good cause.
Order
The court ordered Calcano to submit, no later than February 4, 2020, a letter of no more than three pages, supported by legal authority, explaining why the case should not be dismissed under Rule 4(m). The court warned that failure to submit the letter and demonstrate good cause for not serving April Hughes, Inc. within 90 days would result in dismissal. The order itself did not dismiss the action.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.