Judge Shira A. Scheindlin
Eleven months after Federal Rule of Civil Procedure 4(m)’s 120-day time limit for service had expired, Cooper sought an extension to serve defendant MacDougall. On Nov. 7, 2011, the court granted Cooper 30 days—though Dec. 7—to serve MacDougall. He did so on Dec. 7. Meanwhile, the City of New York sought reconsideration of the Nov. 7 order. At issue were whether three factors warranted extension of the service period by more than 12 months. Those factors were whether the applicable statute of limitations would bar the refiled action; whether MacDougall had actual notice of the claims asserted in the complaint; and, whether MacDougall would be prejudiced by granting relief to Cooper. Upon reconsideration, the court vacated the extension and dismissed MacDougall from Cooper’s lawsuit. Under Micciche v. Kemper National Services Cooper’s service of a notice of claim on MacDougall—a state law prerequisite to assertion of state law claims against a municipality—did not provide actual notice of a federal lawsuit. Further, prejudice to MacDougall resulting from his inclusion in Cooper’s lawsuit as a defendant rather than as a witness weighed against granting Cooper a 12-month extension of the service period.
