Guglielmo v. Takeya USA Corporation

USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED . ee JOSEPH GUGLIELMO, on behalf of himself: DATE FILED: 10/27/2020 and all others similarly situated, : Plaintiff, 20-CV-5575 (VSB) -against- ORDER TAKEYA USA CORPORATION, Defendant.

VERNON S. BRODERICK, United States District Judge: On July 20, 2020, Plaintiff filed this action against Defendant Takeya USA Corporation. (Doc. 1.) Plaintiff obtained a summons on July 21, 2020. (Doc. 4.) To date, Plaintiff has not filed an affidavit of service or taken any other action to prosecute this case. Accordingly, it is hereby: ORDERED that, no later than November 2, 2020, Plaintiff shall file an affidavit of service demonstrating that he timely served Defendant, or if service has not been effectuated, submit a letter of no more than three (3) pages, supported by legal authority, demonstrating good cause as to why this case should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). “Good cause is generally found only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control.”

E. Refractories Co. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999) (internal quotation marks omitted). “District courts consider the diligence of plaintiff's efforts to effect proper service and any prejudice suffered by the defendant as a consequence of the delay.” Id. (internal quotation marks omitted). “An attorney's inadvertence, neglect, mistake or misplaced reliance does not constitute good cause.” Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y. 1997) (citing McGregor v. United States, 933 F.2d 156, 160 (2d Cir. 1991), aff'd, 173 F.3d 844 (2d Cir. 1999)). Plaintiff is warned that failure to submit a letter and to demonstrate good cause for failure to serve Defendant within ninety days after the complaint was filed will result in dismissal of this action.

SO ORDERED.

Dated: □ October 27, 2020 mn , New York, New York y | i f Vernon S. Broderick United States District Judge