Cano v. Chisolm
- Subramanian
- 1:19-cv-01640
- U.S. District Court · Southern District of New York
- 2
In Cano v. Chisolm, Judge Subramanian extended service deadline and ordered another personal-service attempt plus “nail and mail” service for Ashley Murray.
Christopher Hiram Cano, Ashley Murray, the U.S. Marshals Service, and the Clerk of Court; the order concerns service of the complaint on Murray and does not change deadlines involving the other defendants.
What happened
In Cano v. Chisolm, Christopher Hiram Cano, who is representing himself, sued various defendants under a civil-rights law. Service on Ashley Murray was unsuccessful, including two personal-service attempts by the U.S. Marshals Service.
The court found good cause to extend the service deadline because Cano provided enough information to identify Murray. It granted a 90-day extension and directed the Marshals to try personal service a third time.
If that attempt fails, Judge Arun Subramanian ordered the Marshals to use “nail and mail” service: attaching the summons to the door and mailing it to Murray’s last known residence. The court also directed the Clerk to prepare the required paperwork and stated that the order would not change deadlines involving the other defendants.
The detailed version
- Cano v. Chisolm · No. 1:19-cv-01640
- Subramanian
- Jan. 4, 2024
Background
Christopher Hiram Cano filed the case pro se, meaning without a lawyer, and asserted claims under 42 U.S.C. § 1983. The court had granted his application to proceed without paying the filing fee and had asked defendants to waive service. The waiver of service for Ashley Murray was returned unexecuted in 2019 because Murray was reportedly no longer employed by the Department of Corrections. No further service attempt was made at that time.
Later, Cano asked to add Murray as a defendant. The court treated that request as a request to extend the service deadline and granted it. The Marshals then made two attempts at personal service, both unsuccessful. The opinion states that it was unclear whether Murray was avoiding service or no longer lived at the address used. Counsel for the other defendants also tried calling and texting another possible telephone number, but received no response.
Court’s Analysis
The 90-day service period had expired. The court explained that Rule 4(m) permits an extension for good cause. It concluded that good cause existed because Cano was a pro se prisoner who had provided sufficient information to identify Murray, and because the Marshals had been unable to complete service. The court therefore granted a 90-day extension for service.
The court also addressed the method of service. It ordered the Marshals to make a third attempt at personal service on Murray. If that attempt failed, the Marshals were ordered to use “nail and mail” service under New York Civil Practice Law and Rules § 308(4). That method requires attaching the summons to the door of the person’s actual place of business, dwelling place, or usual place of abode, and mailing the summons to the person’s last known residence. The court stated that the Marshals could attach the summons immediately after the failed third attempt and had to mail it within 20 days of attaching it.
Order
Judge Arun Subramanian directed the Clerk of Court to issue a summons for Murray, complete a U.S. Marshals Service Process Receipt and Return form with Murray’s address, and provide the Marshals with the documents needed to serve the complaint. The Clerk was also directed to mail Cano a copy of the order and record that mailing on the docket. The order did not change the existing deadlines in the case, including the deadline for summary-judgment motions concerning the other defendants.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.