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Evarts v. Quinnipiac University

United States District Court, D. Connecticut

June 10, 2016



          Charles S. Haight, Jr., Senior United States District Judge


         In October of 2015, pro se plaintiff Ellsworth Evarts commenced this wrongful termination action against Quinnipiac University, his former employer, for violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12101, et seq., and the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq. In his Complaint, Plaintiff alleges that the university failed to afford him "reasonable accommodation, " and in fact "refused [him the opportunity] to return to work" following a surgery he underwent.[1] Doc. 1, at 3. He thus seeks "backpay" and "monetary damages" in the form of "lost wages and retirement benefits." Id., at 5.

         Following the filing of the Complaint, Plaintiff took no action in this matter. He filed no proof of service on the Defendant and no additional pleadings. On May 27, 2016, the Court entered an Order, noting that "[m]ore than 90 days have elapsed since the complaint was filed but [P]laintiff has not made proof of service as required by Fed.R.Civ.P. 4(l)."[2] Doc. 5. The Court thus ordered Plaintiff to "show cause on or before June 9, 2016 as to why this action should not be dismissed." Id.

         On June 7, 2016, Plaintiff filed a timely response to the Court's Order by letter, requesting a continuance of the matter so that he can secure the services of Attorney James Sabatini or other counsel to help him pursue this action. Doc. 6, at 1. Plaintiff explained that he was under the misimpression that he had to await word from the Court to proceed in this action:

When I filed [the Complaint] I was told the court would decide if the lawsuit would move forward through the court. I was awaiting notice that my lawsuit would be heard and instead received Notice of Electronic Filing. . . . The reason no filing was made is I never got notice my case would be heard. If I received a notice my case was going forward I would have filed the notice of service to the defendants.

Id.[3] Evarts also assured the Court that he has obtained a "P.O. Box now so in the future [he] should not have a problem receiving [his] mail." Id.


         A. Requirements for Service

         Under the Federal Rules of Civil Procedure, upon the filing of the complaint, the plaintiff has the duty to serve the summons and complaint upon the defendant.[4] In particular, pursuant to Rule 4(c)(1), Fed. R. Civ. P., "[t]he plaintiff is responsible for having the summons and complaint served [upon the defendant] within the time allowed by Rule 4(m), " which was, at the relevant time in this action, 120 days after the complaint was filed.[5] See also Fed. R. Civ. P. 4(h) (describing service upon a corporation, partnership of association). Absent proper service, the Court lacks personal jurisdiction over the unserved defendant.[6]

         Furthermore, under Rule 4(m), Fed. R. Civ. P., if a defendant is not served within the requisite period 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."[7] However, "if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id.

         B. Pro Se Status - Grounds for Leniency

         Due to his pro se status, the Court is inclined to treat Plaintiff Evarts with leniency and thereby provide him additional time to correct his failure to effect service and/or return proof of that service. Such judicial forbearance conforms with the Second Circuit's general approach of leniency toward pro se litigants. For example, in evaluating facial plausibility of claims, "[p]ro se complaints are to 'be construed liberally and interpreted to raise the strongest arguments that they suggest.'" Maki v. New York, 597 F.App'x 36, 36 (2d Cir. 2015) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006)). See also Frederick v. Wells Fargo Home Mortg., No. 15-1457, 2016 WL 2893211, at *1 (2d Cir. May 18, 2016) ("We will liberally construe complaints filed pro se to state the strongest arguments that they suggest.").

         Plaintiff is advised, however, that despite such leniency, all parties, even those who are pro se, must abide by the procedural rules of the Court, both Federal and Local. Specifically, parties "are required to inform themselves regarding procedural rules and to comply with them." LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) (quoting Edwards v. INS, 59 F.3d 5, 8 (2d Cir.1995). "This is especially true in civil litigation." LoSacco , 71 F.3d at 92. See also McNeil v. United States, 508 U.S. 106, 113 (1993) ("we have never suggested that ...

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