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‐ 2117

Tolchin v. County of Nassau



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX 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 Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 17 th day of May, two thousand

nineteen.

PRESENT: DENNIS JACOBS,

PIERRE N. LEVAL,

CHRISTOPHER F. DRONEY,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

SCOTT A. TOLCHIN, HEIDI TOLCHIN,

Plaintiffs

‐ Appellants,

v. 18

‐ 2117

COUNTY OF NASSAU, NASSAU

COUNTY POLICE DEPARTMENT,

DETECTIVE ROBIN ARCHBOLD, IN

HER INDIVIDUAL CAPACITY, POLICE

OFFICERS JOHN DOE 1 THROUGH2 JOHN DOE 10, (THE NAME “JOHN

DOE” BEING FICTITOUS, AS THE

TRUE NAMES ARE PRESENTLY

UNKNOWN), IN THEIR INDIVIDUAL

AND IN THEIR OFFICIAL CAPACITIES,

NASSAU COUNTY DISTRICT

ATTORNEY’S OFFICE,

Defendants

‐ Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

FOR APPELLANTS: William K. Joseph (Louis F. Chisari,

on the brief), Marcote & Associates,

P.C., Hicksville, NY.

FOR APPELLEES: Adam M. Moss (Robert F. Van der

Waag, Deputy County Attorney, on

the brief), for Jared A. Kasschau,

Nassau County Attorney, Mineola,

NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Spatt, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED

.

Scott Tolchin and Heidi Tolchin appeal from a judgment of the United

States District Court for the Eastern District of New York (Spatt, J.) dismissing

their complaint for untimely service of process. We assume the parties’

familiarity with the underlying facts, the procedural history, and the issues

presented for review.

In March 2013, the plaintiffs hosted a birthday party for their 14

‐ year

‐ old

daughter at their home in Merrick, New York. During the party, Mr. Tolchin

was involved in a physical altercation with an individual who lived in the3 neighborhood, Robin Archbold, and who, unbeknownst to the plaintiffs, was an

off

‐ duty police detective. Police officers arrived at the Tolchins’ home, arrested

Mr. Tolchin, and brought him to the station house, where he was charged with

various offenses of which he was eventually found not guilty at trial. At the

station house, Mr. Tolchin fell in a poorly lit stairway and fractured six ribs.

In March 2016, the plaintiffs filed a complaint in district court alleging

claims including false arrest, false imprisonment, excessive force, and malicious

prosecution. The district court clerk’s office rejected the proposed summons,

and plaintiffs took no further action. On October 19, 2016, seven months later,

the district court issued an electronic order noting that there had been no action in

the case and directing plaintiffs to provide a status report or risk closure for

failure to prosecute. Counsel for plaintiffs responded a week later by letter,

representing that upon issuance of the summons, defendants would be served

“expeditiously.” After rejecting two more proposed summonses filed by the

plaintiffs, the clerk’s office accepted a proposed summons on October 28, 2016.

Despite counsel’s representations to the court, nothing further was done to

effectuate service for nine months.

In July 2017, more than 16 months after the complaint was filed, the district

court ordered the plaintiffs to appear and show cause why the case should not be

dismissed for failure to effect service on the defendants. The plaintiffs ultimately

effected service on July 28, 2017. Nevertheless, the district court granted a

motion by the defendants to dismiss the complaint for failure to timely serve

process under Federal Rule of Civil Procedure 4(m).

“We review for an abuse of discretion a district court’s Rule 4(m) dismissal

for failure to serve process.” Zapata v. City of New York, 502 F.3d 192, 195 (2d

Cir. 2007). Rule 4(m) provides that “[i]f a defendant is not served within 90 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.” Fed. R. Civ. P. 4(m).

However, “if the plaintiff shows good cause for the failure, the court must extend

the time for service for an appropriate period.” Id.4 The plaintiffs do not contest that they lack good cause for their failure to

timely effect service. Instead, they argue that the district court should have

exercised its discretion to extend the time for service despite the lack of good

cause

.

“[A] district court may grant an extension in the absence of good cause, but

it is not required to do so.” Zapata, 502 F.3d at 197 (emphasis in original). The

plaintiffs have failed to make a showing of a colorable excuse for their untimely

service. Instead, they concede that the more than 16

‐ month delay in service was

caused by their counsel’s repeated neglect. The plaintiffs argue that an extension

was nonetheless warranted because they face prejudice in the absence of an

extension

‐‐ i.e., the denial will result in their claims being barred by the statute of

limitations

‐‐ and because the defendants would face limited prejudice if an

extension were granted, as they had actual notice of the claims asserted in the

complaint. But without a colorable excuse for the failure to timely serve process,

“no weighing of the prejudices between the two parties can ignore that the

situation is the result of the plaintiff’s neglect.” See Zapata, 502 F.3d at 198.

The district court considered in a written opinion the prejudice that each party

would face from a dismissal or extension, and reasonably determined that no

extension was warranted. We accordingly see no abuse of discretion in the

district court’s dismissal pursuant to Rule 4(m).

We have considered the plaintiffs’ remaining arguments and find them to

be without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK