Bernabel v. Allied Universal
- Edgardo Ramos
- 1:21-cv-00655
- U.S. District Court · Southern District of New York
- 3
In Bernabel v. Allied Universal, Judge Ramos dismissed the case without prejudice because Joel Bernabel did not serve the defendant and denied fee-free status for an appeal.
Joel Bernabel's case against Allied Universal Security Services was dismissed without prejudice. The order also denied Bernabel fee-free status for purposes of an appeal.
What happened
In Bernabel v. Allied Universal, Joel Bernabel sued Allied Universal Security Services and was allowed to proceed without paying the filing fee. The court issued a summons and repeatedly extended the deadline for service after the U.S. Marshals had not served the defendant.
Bernabel did not file proof that the defendant had been served or explain in writing why another extension was justified. After a final extension and warning that the case would be dismissed, he did not communicate with the court or file proof of service.
Judge Edgardo Ramos dismissed the case without prejudice for failure to complete service under Federal Rule of Civil Procedure 4(m). The court also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.
The detailed version
- Bernabel v. Allied Universal · No. 1:21-cv-00655
- Edgardo Ramos
- Nov. 15, 2022
Background
Joel Bernabel, proceeding without a lawyer, filed a complaint against Allied Universal Security Services. The court allowed him to proceed without paying the filing fee and issued a summons. The summons expired before service was completed.
Bernabel requested several extensions so that the U.S. Marshals could complete service. The court granted extensions in June 2021, July 2021, and December 2021. In December 2021, the court also granted requests to update the defendant's name, provide a new summons address, and correct Bernabel's mailing address, but denied another request to extend the service deadline beyond January 12, 2022.
Bernabel did not file proof of service. On April 12, 2022, the court ordered him to file proof of service by May 3, 2022, or explain in writing why another extension was warranted, warning that the case would otherwise be dismissed without prejudice. In September 2022, the court granted a fourth extension through October 12, 2022, and again warned that no further extension would be granted absent good cause and that the case would be dismissed unless proof of service was filed by October 13, 2022. Bernabel did not file proof of service, show good cause in writing, or communicate with the court after September 12, 2022.
Ruling
Federal Rule of Civil Procedure 4(m) requires a court, after notice to the plaintiff, to dismiss an action without prejudice or set a new service deadline when a defendant has not been served within 90 days after the complaint is filed. Applying that rule, Judge Edgardo Ramos ordered that the case be dismissed without prejudice for failure to complete service.
The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith. It therefore denied Bernabel's permission to proceed without paying fees for purposes of an appeal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.