Magistrate Judge James Francis
Win’s January 2012 complaint claimed Waldorf-Astoria (Hotel) and Carlos discriminated against her due to her age. A right-to-sue letter was mailed in December 2011. Win showed Carlos served on May 8, 2012. Misapprehending both defendants’ service, the magistrate judge directed Win to seek default judgment by Sept. 28, which she did. After realizing that only Carlos was served the magistrate judge recommended denial of Win’s default motion against the Hotel. Under Federal Rules of Civil Procedure 4(m) and 41(b) Hotel sought dismissal of Win’s employment discrimination action on the ground that she failed to effect service within 120 days and thus failed to prosecute her case. Finding Win’s mistaken belief that service was effected on the Hotel when Carlos was served to be an innocent error, the magistrate judge—discussing the factors in DeLuca v. AccessIT Group—recommended denial of Hotel’s Rule 4(m) motion and that Win be given a reasonable period of time to serve Hotel. Discussing the factors in Spencer v. Doe, the magistrate recommended denial of Hotel’s Rule 41(b) claim. Given that dismissal under Rule 4(m) was not warranted, no aggravating factors made it appropriate to dismiss Win’s action with prejudice under Rule 41(b).