IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NATARAJAN VENKATARAM,

 Plaintiff,

v.

CITY OF NEW YORK, et al.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-0789 (JBS/KMW)

MEMORANDUM OPINION

SIMANDLE, Chief Judge:

This matter is before the Court on this Court’s Order to

Show Cause on or before April 21, 2012 why this case should not

be dismissed under Rule 4(m), Fed. R. Civ. P., for failure to

timely serve Defendants. THE COURT FINDS AS FOLLOWS:

1. Plaintiff filed the present Complaint on February 14,

2011, paid the $350 filing fee, but nonetheless asked the Court

to serve it. On September 29, 2011, the Court entered an Order

explaining that the Court would not serve Plaintiff’s Complaint,

but permitting Plaintiff to seek appointment of a private process

server pursuant to Rule 4(c)(3) at his expense, and extending the

time for service of process to 120 days from the date of that

Order. Thus, the extended deadline for Plaintiff to complete

service of process under Rule 4(m), Fed. R. Civ. P., was January

28, 2012, nearly twelve months after Plaintiff had filed his

Complaint.

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2. On November 2, 2011, Plaintiff identified a private

server, and sought the issuance of eight summonses for service by

that individual. At this time, Plaintiff also moved for a

retroactive extension of time for Plaintiff to identify his

process server, since that deadline had elapsed. Without

addressing this motion, the Court issued the summons as requested

in November. On January 11, 2012, out of concern over the lack

of service or correspondence, the Court again sent to Plaintiff

blank summons to be filled out for issuance pursuant to Rule

4(b), Fed. R. Civ. P. 

3. On February 14, 2012, after the expiration of the

service deadline, Plaintiff finally submitted the eight summons

for issuance, which the Clerk of Court issued on the same day. 

Plaintiff did not submit any request for extension at that time,

and nothing further was filed upon the docket until this Court’s

March Order.

4. On March 29, 2012, the Court entered an Order to Show

Cause why this case should not be dismissed under Rule 4(m), Fed.

R. Civ. P., because the January deadline had long elapsed without

any word from Plaintiff. In response, Plaintiff represents that

his private server “became unavailable” so he had to find an

alternative, which was difficult because he is incarcerated. He

retained a private server in February 2012, presumably around the

time he finally filled out the blank summons, and eventually

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served Defendants on March 27, 2012. Plaintiff represents that

he did not receive proof of service until April 11, 2012, after

this Court’s Order to Show Cause.

5. Under Rule 6(a)(B) of the Federal Rules of Civil

Procedure, Plaintiff’s showing for why he did not effect service

before the deadline or otherwise seek an extension is

insufficient. Rule 6(a)(B) provides that “When an act may or

must be done within a specified time, the court may, for good

cause, extend the time . . . on motion made after the time has

expired if the party failed to act because of excusable neglect.” 

Rule 6(a)(B), Fed. R. Civ. P.; see also Lujan v. National

Wildlife Federation, 497 U.S. 871, 896 (1990) (enforcing literal

text of the rule). Plaintiff has not demonstrated good cause,

much less excusable neglect.

6. Here, the time for service expired on January 28, 2012. 

Plaintiff’s response offers no explanation for why it took

Plaintiff months to obtain an alternate server, and why he did

not seek a further extension of the deadline for service in this

long period. Plaintiff had received the benefit of a greatly

enlarged deadline, and Plaintiff was aware of the January

deadline, as unlike most cases, the Court had specifically

informed Plaintiff of the deadline after the first extension. In

light of Plaintiff’s failure to even write a simple letter to the

Court explaining the delay either before or after the deadline

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elapsed, the Court can only find a complete lack of diligence in

pursuing these claims. See Consol. Freightways Corp. v. Lawson,

837 F.2d 916, 912–20 (3d Cir. 1987) (discussing the meaning of

excusable neglect).

7. The basis of the present action is a civil RICO claim,

for which the statute of limitations is four years, see Agency

Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143,

156 (1987), and various 42 U.S.C. § 1983 claims, for which the

statute of limitations depends on the applicable state law, but

appears to be either two or three years in this case. Plaintiff

complains of conduct occurring in mid-2010, so it does not appear

that dismissal of this case presently bars all future litigation.

8. It is an unfortunate fact of litigating from prison that

serving and filing court documents is difficult, and as a

consequence this Court provides prisoner litigants with

substantial leeway, as was done in this case with the initial

extension of the deadline for service because of Plaintiff’s

misguided request for the Court to effect service. Although

Plaintiff is not indigent, and thus does not proceed under 28

U.S.C. § 1915, the Court nonetheless explicitly advised Plaintiff

of his obligations to prosecute his complaint by serving process

through an adult server of his own choice. It is incumbent upon

prisoner litigants, like all other litigants, to act without

undue delay and to timely inform the Court of any unavoidable

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delays before deadlines elapse. Despite the Court having

extended Plaintiff every reasonable opportunity to do so,

Plaintiff has not done these things. Dismissal without prejudice

is therefore warranted under Rule 4(m), Fed. R. Civ. P. The

accompanying Order will be entered.

May 14, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

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