Donohue v. Fudge

Background

Kelly Junior-Donohue filed a proposed class action on March 23, 2023. The defendants were Marcia L. Fudge, in her capacity as Secretary of the U.S. Department of Housing and Urban Development; the New York City Department of Housing Preservation and Development; Hudsonview Co.; and unidentified individuals listed as John and Jane Does.

Donohue moved under Federal Rule of Civil Procedure 4(m) for an extension of time to serve the complaint. Rule 4(m) generally requires service within 90 days after filing. The 90-day period in this case ended on June 21, 2023. The opinion states that no summonses had been issued and no proofs of service had been filed.

Donohue’s explanation attributed the failure to serve Hudsonview to its attorney’s refusal to provide an address or accept service. She said the government defendants were not served because she believed the case could not proceed without serving Hudsonview. Her counsel also briefly referred to continuing effects of COVID-19 but did not explain how those effects prevented timely service. The request did not provide a specific date by which service would be completed.

Court’s Analysis

The court first considered whether Donohue had shown “good cause,” meaning exceptional circumstances outside her control that prevented timely service. It found no good cause. The court emphasized that she had not even requested summonses, had consciously chosen not to serve the government defendants, and had not adequately explained why Hudsonview could not be served through other available methods.

The court also noted that an attorney who is not authorized to accept service may refuse to accept it. It stated that the responsibility for properly serving defendants belonged to Donohue’s attorney, not the court or the defendants. The court identified possible avenues for serving a New York business entity, including service through the New York Secretary of State or use of public housing and business records to identify an address, while cautioning that it was not deciding whether the particular information found was a suitable address for service.

The court then considered whether to extend the deadline even without good cause. It found that Donohue had not shown that a statute of limitations would prevent refiling. The notice factor slightly favored her only as to Hudsonview, because Hudsonview’s counsel had communicated with her and she had referred to the case in another proceeding. The court found that no defendant had concealed a service defect and that delay could prejudice all defendants, particularly because the events described by Donohue began more than a decade earlier. The court also considered her representation by counsel, the lack of a specific proposed service period, and the failure to seek an extension before the deadline.

Disposition

Judge Vernon S. Broderick held that Donohue failed to show good cause and that extending the service deadline would be an improper exercise of discretion. The court denied her motion for an extension of time to serve the complaint and dismissed the complaint without prejudice for failure to serve under Rule 4(m).