Counter Terrorist Group US v. New York Magazine

08-4355-cv
Counter Terrorist Group US v. New York Magazine
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation "summary order"). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty-sixth day of April, two thousand and ten.
PRESENT:
JOSÉ A. CABRANES,
RICHARD C. WESLEY ,
Circuit Judges.*
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COUNTER TERRORIST GROUP US, COUNTERR GROUP , and
J.K. IDEMA ,
Plaintiffs-Appellants,
v. No. 08-4355-cv
NEW YORK MAGAZINE , both individually and severally,
NEW YORK METRO .COM , both individually and severally,
NEW YORK MAGAZINE HOLDINGS, LLC, both individually
and severally, LAWRENCE C. BURNSTEIN , both individually
and severally, STACY SULLIVAN , both individually and severally,
JOSEPH A. CAFASSO , both individually and severally, EDWARD
A. ARTIS, both individually and severally, TRACY PAUL
WARRINGTON , both individually and severally, DOES, 1 through
7, inclusive, both individually and severally, and TOD
ROBBERSON ,
*
The Honorable Rosemary S. Pooler, originally scheduled to be a member of the panel hearing this appeal, was
unable to participate. The appeal has been decided by the remaining two members of the panel, who are in agreement.
See 2d Cir. Local Rules, Internal Operating Procedure E(b).
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Defendants-Appellees.**
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FOR PLAINTIFFS-APPELLANTS: J.K. Idema, pro se, Poughkeepsie, NY.
John E. Tiffany, Law Offices of John E. Tiffany, P.C.,
Newark, NJ.
FOR DEFENDANTS-APPELLEES: Slade R. Metcalf (Rachel F. Strom, on the brief), Hogan
& Hartson LLP, New York, NY, for defendants-
appellants New York Media LLC, Lawrence C. Burnstein,
and Stacy Sullivan.
Louise Sommers, Miller Korzenik Sommers LLP,
New York, NY, for defendant-appellant Tracy Paul
Warrington.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Deborah A. Batts, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiffs-appellants appeal from the District Court’s orders (1) dismissing their complaint
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure for failure to serve defendants within
120 days of filing the complaint; and (2) denying their motion for an extension of time to effect
service upon the defendants. We assume the parties’ familiarity with the factual and procedural
history of the case.
We review the dismissal of a complaint for failure to serve process for abuse of discretion.
See Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir. 2007). Under Rule 4(m):
If a defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made within
a specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
**
The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated
above.
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Fed. R. Civ. P. 4(m).
Although a district court must grant an extension where good cause is shown, it may also
grant a discretionary extension absent such showing. See Zapata, 502 F.3d at 196 (citing Henderson v.
United States, 517 U.S. 654, 662-63 (1996)). Because the authority to grant an extension absent a
showing of good cause is purely discretionary, plaintiffs’ argument that the District Court was
required to grant an extension pursuant to Henderson is without merit. See id. at 197-99.
Here plaintiffs have not shown good cause for the failure to effect service in a timely
fashion, nor that the District Court abused its discretion in denying an extension absent good cause.
It is undisputed that plaintiffs’ counsel and others employed to serve process on defendants
miscalculated Rule 4(m)’s 120-day period by several days, and then delayed attempting service until
the very end of that period. Despite plaintiffs’ allegation that some defendants attempted to evade
service, the record demonstrates that all but one of the defendants were served within five days of
the first attempt of service. Thus, plaintiffs’ miscalculation, and not defendants’ alleged evasion,
caused service to be untimely. Attorney error does not constitute good cause under Rule 4(m). See
McGregor v. United States, 933 F.2d 156, 159-60 (2d Cir. 1991).
We also reject plaintiffs’ argument that the District Court failed to comply with Rule 4(m)
because it failed to give notice to plaintiffs before dismissing the complaint on its own motion.
Here plaintiffs themselves raised the issue of untimely service is a motion for an extension of time.
Thus, plaintiffs had ample opportunity to argue—and did in fact argue—that there was good cause
to extend the 120-day period. Cf. Nagy v. Dwyer, 507 F.3d 161, 164 (2d Cir. 2007) (“[A] failure to
provide notice pursuant to Rule 4(m) can constitute an abuse of discretion or error of law where the
absence of notice forestalled a plaintiff from making a colorable argument that there was good cause
to extend the 120-period in which service was due.”). Accordingly, the District Court did not abuse
its discretion in dismissing the complaint pursuant to Rule 4(m).
CONCLUSION
We have considered all of plaintiffs’ arguments and find them to be without merit. In
accordance with the foregoing, the judgment of the District Court is AFFIRMED.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
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