Kogan v. Facebook, Inc.

Background

Aleksandr Kogan sued Facebook, Inc., Paul Grewal, Alex Stamos, and Mark Zuckerberg in New York state court. He alleged defamation per se, defamation per quod, and related claims against Facebook for negligent hiring, supervision, and responsibility for its employees’ conduct. The defendants removed the case to the U.S. District Court for the Southern District of New York.

The court later noted that Kogan had not filed proof that defendants had been served. Kogan then filed a First Amended Complaint and asked for permission either to file a waiver-of-service form or to receive more time to serve the original Complaint. Defendants opposed that request and separately moved for sanctions under Rule 11 and for dismissal with prejudice. The court addressed the service issue first.

Rule 4 Service Deadline

Federal Rule of Civil Procedure 4(m) generally requires service of the summons and Complaint within 90 days. Because defendants removed this case on March 21, 2019, the court held that Kogan’s deadline was June 19, 2019. The court found it undisputed that Kogan did not serve the original Complaint by that date or at any later time.

Waiver of Service

Kogan argued that defendants had agreed to waive service. The court rejected that argument. It found that defendants’ counsel had communicated a willingness to waive service but had asked Kogan’s counsel to confirm that Kogan accepted that method. Kogan’s counsel did not respond, and no waiver form was executed or filed.

The court also held that, even if an informal agreement had existed, Kogan had not followed Rule 4(d)’s required steps for a waiver. Those steps included requesting the waiver, obtaining a written waiver on the required form, and filing the executed form. The court held that defendants’ actual notice of the lawsuit did not cure the failure to comply with the service rules.

Requests for More Time

The court denied Kogan’s request for an extension based on “good cause.” It explained that good cause requires exceptional circumstances beyond the plaintiff’s control and found that Kogan had offered no coherent, supported explanation for waiting until roughly six months after the service deadline to seek relief. The court found that counsel’s inattention, the claimed gap in representation, and the absence of prejudice alone did not establish good cause.

The court also declined to grant a discretionary extension. It considered that dismissal might prevent some or all of Kogan’s claims from being refiled within the applicable limitations period, and that defendants had notice of the lawsuit. But it gave those considerations limited weight because Kogan made no effort to serve the defendants or request a waiver, knew about the approaching limitations deadline, and had been reminded by defendants that service had not occurred. The court also found that defendants would be prejudiced by having to defend claims that could otherwise be time-barred.

Ruling and Disposition

Judge Paul A. Engelmayer granted defendants’ motion to dismiss and dismissed Kogan’s original Complaint for failure to effect timely service. The court denied Kogan’s requests to validate a waiver of service, to excuse the failure for good cause, and to receive a discretionary extension. The Clerk was directed to terminate Kogan’s motion concerning waiver or an extension of time.

The court did not decide the merits of Kogan’s defamation or related claims. The opinion states that defendants’ motions to dismiss the First Amended Complaint and for Rule 11 sanctions remained for later consideration.