Ndemenoh v. Boudreau

Background

The first amended complaint named six original defendants: Vincent Boudreau, William C. Thompson, Anthony Laperuta, Wendy Thornton, George Rhinehart, and Tanni Baidya. After those defendants moved to dismiss, the plaintiff’s lawyer requested several extensions but did not file an opposition. Instead, without requesting permission, counsel filed a second amended complaint naming sixteen new defendants. The court later allowed that filing.

The plaintiff did not obtain electronic summonses until after the service period had expired. Although the plaintiff later filed affidavits of service for the new defendants, the service was untimely. The court repeatedly gave the plaintiff opportunities to address the service problems. In its June 22, 2022 order, the court required proof of service for each defendant and an explanation of how service had been made and why it complied with the applicable rules. The court warned that failure to comply would result in dismissal under Rule 4(m). The plaintiff did not submit the required materials by the July 8 deadline or file any document addressing the order.

Rulings

Rule 4(m) generally requires timely service of the summons and complaint. The court found that the plaintiff had not shown good cause for extending the service deadline and had provided no basis for an discretionary extension. It concluded that the plaintiff’s repeated failure to correct the service deficiencies warranted dismissal.

The court therefore granted the new defendants’ motions to dismiss under Rule 4(m) and dismissed the case without prejudice as to the City of New York, City University of New York, Felix Rodriguez, Pasquale Morena, Dee Dee Mozeleski, Juana Reina, Rondell Goppy, Paul Ochiogrosso, William Barry, Michael Lederhandler, Alexandra Coveleski, Donice Moreau, Ramon Portillo, Guillermo Suarez, Albert Trotter, and Louron Hall. The clerk was directed to terminate those defendants from the action.

The original defendants also sought dismissal of the entire action under Rule 41(b) for failure to prosecute. The court explained that this is a severe sanction reserved for extreme situations, but denied that motion. It reasoned that the original defendants’ deadline to respond to the second amended complaint had been postponed and that the plaintiff had no continuing obligations to them since filing that complaint. The original defendants remained in the action and were directed to answer or otherwise respond by August 19, 2022.

Effect of the Order

This order resolved service-related and case-management issues; it did not decide whether the plaintiff’s underlying claims were legally valid. The new defendants were dismissed without prejudice, while the original defendants’ Rule 41(b) motion was denied and the claims against them remained pending.