Lugo v. The Center ( 2024 )

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED DOCH CARLOS LUGO, DATE FILED:__ 03/11/2024 Plaintiff, 21-CV-07423 (MMG) -against- NOTICE OF LESBIAN & GAY COMMUNITIES SERVICE REASSIGNMENT & CENTERS, et al., ORDER Defendants. MARGARET M. GARNETT, United States District Judge: This case has been reassigned to the undersigned. Unless and until the Court orders otherwise, all prior orders, dates, and deadlines shall remain in effect notwithstanding the case’s reassignment. Plaintiff and counsel for Defendants must familiarize themselves with the Court’s Individual Rules & Practices (“Individual Rules”), which are available at https://nysd.uscourts.gov/hon-margaret-m-garnett. On January 17, 2024, Plaintiff filed an Amended Complaint, which added a new Defendant, Forrest Solutions (Dkt. No. 39). On February 7, 2024, Plaintiff filed a letter asking the Court to order the U.S. Marshals Service to effectuate service upon Forrest Solutions and provided an address at which Forrest Solutions can be served (Dkt. No. 42). The Clerk of Court is directed to issue an Amended Summons as to Defendant Forrest Solutions. Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process ... in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that summonses and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and the Amended Complaint until the Court reviewed the Amended Complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 120 days after the date summonses are issued. If the Amended Complaint is not served within that time, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiffs responsibility to request an extension of time for service); see also Murray v. Pataki, 378 F. App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule 4(m).”). To allow Plaintiff to effect service on defendants through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for Defendant Forrest Solutions. The Clerk of Court is further instructed to deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Defendant Forrest Solutions. Pursuant to Judge Broderick’s Opinion and Order, dated October 12, 2023 (Dkt. No. 34), Plaintiffs claims against Chris LaPlant were dismissed with prejudice. Because the Amended Complaint states the identical claims against LaPlant that were dismissed by Judge Broderick with prejudice, for the reasons stated in Judge Broderick’s Opinion and Order the Clerk of Court is respectfully directed to terminate Chris LaPlant as a party in this action. Finally, pursuant to Rule III(C)(2) of the Court’s Individual Rules, it is hereby ORDERED that Defendant Lesbian & Gay Communities Service Centers file an Affidavit of Service, regarding service of its Motion to Dismiss the Amended Complaint (Dkt. Nos. 46-48) within 7 days of the date of this Order. Upon the filing of the Affidavit of Service, the Court will set a briefing schedule for the Motion to Dismiss the Amended Complaint. The Clerk of Court is respectfully directed to mail this Order to pro se Plaintiff. Dated: March 11, 2024 New York, New York SO ORDERED. AROGRE 3 = GARNETT United States District Judge