Shchegelskiy v. United States Of America

Background

Andriy Shchegelskiy filed a complaint under the Federal Tort Claims Act against the United States and Igria Consulting concerning an automobile accident. The complaint was first filed on March 18, 2020, but it was defective, so Shchegelskiy refiled it on March 20, 2020. The case was referred to Magistrate Judge Barbara C. Moses for general pretrial supervision.

More than 90 days after the complaint was refiled, Judge Moses ordered Shchegelskiy to explain why the case should not be dismissed for failure to serve the defendants. Shchegelskiy’s counsel requested more time, citing conditions following the COVID-19 pandemic outbreak in New York. Judge Moses granted an extension until August 5, 2020.

On August 4, 2020, Shchegelskiy filed an affidavit stating that a process server had sent documents by certified mail to the U.S. Department of Justice in Washington, D.C. He also filed an affidavit stating that the process server could not serve Igria Consulting because its address did not exist. In a November 10, 2020 letter, Shchegelskiy acknowledged that service had not been completed under the applicable rule, blamed a clerical error, stated that service had since been made, and asked the court to treat service as complete.

Legal standard

Federal Rule of Civil Procedure 4(i) sets out the required steps for serving the United States. Those steps include serving or mailing the summons and complaint to the U.S. Attorney’s Office for the district where the case is brought and mailing copies to the U.S. Attorney General in Washington, D.C. Rule 4(m) generally requires dismissal without prejudice when a defendant is not served within 90 days after the complaint is filed, unless the plaintiff shows good cause for the failure. If good cause is shown, the court must extend the service deadline for an appropriate period.

The court explained that good cause depends on whether the plaintiff made diligent and reasonable efforts to serve the defendant. It also stated that the plaintiff bears the burden of proving good cause and that an attorney’s ignorance of the rules, carelessness, neglect, or mistake generally does not establish good cause.

Court’s analysis and ruling

Judge Gardephe treated Shchegelskiy’s November 10 letter as a timely objection to Judge Moses’s Report and Recommendation and reviewed the recommendation independently. The court found that, when Judge Moses issued the recommendation, Igria Consulting had not been served and the United States had not been properly served because the U.S. Attorney’s Office for the Southern District of New York had not been served. The court also noted that service had not been completed despite the extension and the passage of seven months since the complaint was filed.

The court concluded that Shchegelskiy had not shown good cause for the failure to serve the defendants. It adopted Judge Moses’s Report and Recommendation in its entirety and dismissed the complaint without prejudice. The Clerk of Court was directed to close the case.