Bello Herrera v. Manna 2nd Avenue LLC

Background

Plaintiffs, described as former employees of the defendants, brought claims under the Fair Labor Standards Act and New York Labor Law based on alleged unlawful employment practices. The defendants included several business entities and individual defendants, including Igor Segota. The opinion concerns only whether Segota should remain in the case.

The complaint was filed on December 31, 2020, according to the discussion section of the opinion. Plaintiffs requested a summons for Segota, but never filed proof that he had been served. Plaintiffs filed proof of service for other defendants.

Segota’s counsel later informed the court that Segota had not been served. Plaintiffs then sought additional time to serve him and permission to use another method of service. Plaintiffs said they had tried to serve Segota at his business and home and had received information from an attorney who did not represent Segota that Segota had returned to Croatia. Segota submitted an affidavit stating that he lived in New York and was in New York as of June 9, 2021.

Legal standard

Federal Rule of Civil Procedure 4(m) generally requires service within 90 days after the complaint is filed. If service is not completed on time, the court must dismiss the action against that defendant without prejudice or order service by a specified deadline. If the plaintiff shows good cause, the court must extend the service period. Courts may also grant an extension without good cause in appropriate circumstances.

A motion under Rule 12(b)(5) seeks dismissal for insufficient service of process. Once such a motion is made, the plaintiff must show that service was adequate. Rule 41(b) also permits dismissal for failure to prosecute.

Discussion

The court concluded that Rule 4(m), rather than Rule 4(f), governed service on Segota. Rule 4(f) concerns service in a foreign country, but Segota’s affidavit stated that he resided in New York and was in New York. Plaintiffs therefore had to serve him within 90 days of filing the complaint—by March 31, 2021. They did not do so.

The court found that plaintiffs had not shown good cause. Their requests for additional time and alternate service came after the deadline. The court also found that plaintiffs had known the identity of Segota’s attorney before the deadline but did not ask that attorney to accept service or otherwise contact her about service until afterward. Instead, plaintiffs relied on information from another defendant’s attorney about Segota’s location. The court stated that counsel’s inadvertence, neglect, or mistake was not good cause and that the lack of claimed prejudice to Segota did not excuse the untimely service.

Recommendation and effect

Magistrate Judge Katharine H. Parker respectfully recommended that Segota be dismissed without prejudice under Rules 4(m), 41(b), and 12(b)(5) for failure to timely serve him and failure to show good cause. The document was a report and recommendation directed to Judge Gregory H. Woods, not a ruling on the wage claims against the other defendants. The notice stated that objections could be filed within 14 days of service.