Kotler v. Boley
- Kenneth Karas
- 7:17-cv-00239
- U.S. District Court · Southern District of New York
- 3
In Kotler v. Boley, Judge Karas dismissed Kotler’s claims against Chauvin without prejudice because Chauvin was not served.
The ruling affected Kerry Kotler’s remaining claims against K. Chauvin; those claims were dismissed without prejudice, while claims against C. Boley, J. Carreras, and S. Reams had already been dismissed with prejudice.
What happened
In Kotler v. Boley, Kerry Kotler sued prison employees, including K. Chauvin. The Marshals Service could not serve Chauvin, who had retired, despite repeated attempts at her last known address.
The court had already dismissed Kotler’s claims against C. Boley, J. Carreras, and S. Reams with prejudice. It dismissed the claims against Chauvin without prejudice for failure to serve her and gave Kotler several opportunities to request more time and explain the problem.
After Kotler did not respond to the court’s order to explain why the case should remain open, Judge Kenneth M. Karas dismissed the claims against Chauvin without prejudice under the federal service rule and directed the Clerk to close the case.
The detailed version
- Kotler v. Boley · No. 7:17-cv-00239
- Kenneth Karas
- June 1, 2021
Background
Kerry Kotler filed a complaint and asked to proceed without paying the usual filing fee. The court granted that request and directed the U.S. Marshals Service to serve the defendants. The Marshals served all defendants except K. Chauvin, Senior Counselor, who had retired.
The court previously dismissed Kotler’s claims against C. Boley, Correction Officer, J. Carreras, Sergeant, and S. Reams, Inmate Grievance Program Supervisor, without prejudice. The court directed the New York State Attorney General’s Office to provide Chauvin’s last known address, and the court then ordered service attempts at that address. The Marshals tried to serve Chauvin by mail and in person, but those attempts were unsuccessful.
Kotler later filed an amended complaint. On February 25, 2020, the court granted the defendants’ motion to dismiss, dismissed the claims against Boley, Carreras, and Reams with prejudice, and dismissed the claims against Chauvin without prejudice for failure to serve. The court gave Kotler 30 days to request more time to serve Chauvin. After Kotler requested more time, the court extended the deadline and later ordered another in-person service attempt, again extending the deadline to April 23, 2021. The Marshals made three more attempts but could not serve Chauvin.
Court’s Reasoning
Federal Rule of Civil Procedure 4(m) requires a court, after notice to the plaintiff, to dismiss an action against a defendant who is not served within the required period or to set a new deadline for service. The court noted that it had given Kotler notice and an opportunity to show good cause—meaning a legally sufficient reason—for the failure to complete service.
The court had warned Kotler that the claims against Chauvin could be dismissed if he did not request more time to serve her. It also issued an order requiring Kotler to explain why the case should not be dismissed for failure to serve. Kotler did not respond to that order or otherwise communicate with the court. The court noted that Kotler had previously shown he could communicate with the court by requesting an extension and that the court had assisted by obtaining Chauvin’s last known address and ordering repeated service attempts.
Disposition
The court dismissed Kotler’s claims against Chauvin without prejudice for failure to serve. The claims against Boley, Carreras, and Reams had already been dismissed with prejudice in the court’s February 25, 2020 order. The court directed the Clerk of Court to mail the order to Kotler and close the case.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.