Zapata v. City of New York

06-1059-cv
Zapata v. City of New York
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2007 4
5
6
(Argued: August 29, 2007 Decided: September 20, 2007) 7
8
Docket No. 06-1059-cv 9
10
- - - - - - - - - - - - - - - - - - - -x 11
ANDIE ZAPATA, 12
13
Plaintiff-Appellant, 14
15
-v.- 16
17
THE CITY OF NEW YORK and CORRECTION 18
OFFICER “JOHN” MORAN, Shield Number 19
Unknown, 20
21
Defendants-Appellees. 22
23
- - - - - - - - - - - - - - - - - - - -x 24
25
Before: JACOBS, Chief Judge, KATZMANN, and HALL, 26
Circuit Judges. 27
28
Appeal from a judgment entered on February 2, 2006 in 29
the United States District Court for the Southern District 30
of New York (Brieant, J.), dismissing a § 1983 complaint 31
alleging assault by a corrections officer on a prisoner. 32
The question on appeal concerns the dismissal as to Officer 33
Moran for failure to effect timely service under Rule 4(m): 34
did the district court abuse its discretion by dismissing 35

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2
without a discretionary extension of the service period 1
where the claim was time-barred absent such an extension? 2
We affirm. 3
TRACIE A. SUNDACK, Tracie A. Sundack 4
& Associates, LLC, White Plains, NY, 5
for Plaintiff-Appellant. 6
7
SUSAN PAULSON, Assistant Corporation 8
Counsel (Francis F. Caputo, on the 9
brief), for Michael A. Cardozo, 10
Corporation Counsel of the City of 11
New York, for Defendants-Appellees. 12
13
DENNIS JACOBS, Chief Judge: 14
Andie Zapata sues the City of New York and a 15
corrections officer under 42 U.S.C. § 1983, alleging that he 16
was assaulted at the Rikers Island correctional facility by 17
one Officer Moran. He appeals from a judgment of the United 18
States District Court for the Southern District of New York 19
(Brieant, J.) insofar as it dismissed Zapata’s claim against 20
Officer Moran for failure to effect timely service under 21
Federal Rule of Civil Procedure 4(m) without granting a 22
discretionary extension. Zapata argues that this was an 23
abuse of discretion (notwithstanding his failure to show 24
good cause) because the denial of an extension rendered 25

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1 Zapata does not appeal from the dismissal of his
claims against the City.
3
Zapata’s claims time-barred.1
1
We join several other circuits and hold that district 2
courts may exercise their discretion to grant extensions 3
under Rule 4(m) absent a showing of good cause under certain 4
circumstances; but here, we decline to vacate for abuse of 5
discretion because Zapata not only failed to show good cause 6
but advanced no colorable excuse whatsoever for his neglect. 7
8
BACKGROUND 9
On June 27, 2002 (according to the complaint) Officer 10
Moran assaulted Zapata in the inmate holding pen at the Anna 11
M. Kross Center on Rikers Island, resulting in serious 12
bodily injury. On September 5, 2002, Zapata filed an 13
administrative claim with the City complaining that he had 14
been “assaulted by C.O. Moran #76079” at the “C-95 AMKC 15
clinic waiting area.” 16
More than two years later (on May 18, 2005) Zapata 17
filed a complaint in the district court, naming the City and 18
Officer Moran as defendants in a suit under 42 U.S.C. § 1983 19

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2 42 U.S.C. § 1983 imposes liability on any person who
under color of state law “subjects . . . any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” of the
United States. Municipalities may only be held liable under
§ 1983 for the acts of their employees if the deprivation
results from a policy or custom of the municipality. See
generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978).
3 “In section 1983 actions [within New York], the
applicable limitations period is . . . three years.” Pearl
v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002).
4
and state common law; the complaint alleged that it was the 1
policy, custom and practice of the City to inadequately 2
supervise, train and discipline their officers.2 Zapata 3
served the City with a summons and complaint on June 2, 4
2005. On June 27, 2005 (coincidentally, the day the three- 5
year statute of limitations for Zapata’s § 1983 claims would 6
have run had the complaint not been filed),3 the City sought 7
a 60-day enlargement of the time in which to file an answer. 8
In its letter to the court, the City noted that Officer 9
Moran had not yet been served. The City filed its answer on 10
August 22, 2005; again, the City stated that, to its 11
knowledge, Officer Moran had not yet been properly served. 12
At an initial conference on September 16, 2005, Zapata’s 13

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4 “[T]he statute of limitations for the underlying
claim is tolled during [Rule 4’s 120-day service] period.”
Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990).
But if the plaintiff’s action is dismissed for a failure to
serve within 120 days, “the governing statute of limitations
again becomes applicable, and the plaintiff must refile
prior to [its] termination . . . .” Id.
5
counsel asked the City for Officer Moran’s work location. 1
On September 19, 2005, Zapata’s counsel forwarded a copy of 2
the summons and complaint by express mail to a process 3
server who served Officer Moran at Riker’s Island (the 4
location of the 2002 incident). Federal Rule of Civil 5
Procedure 4(m) provides that actions are subject to 6
dismissal without prejudice unless service is made within 7
120 days. Zapata’s service on Officer Moran was therefore 8
effected four days beyond the service period, and 84 days 9
after the expiration of the original limitations period.4
10
The City moved to dismiss the Complaint on November 2, 11
2005, on the grounds that all of Zapata’s allegations 12
against the City either failed to state a claim or were 13
time-barred, and that Zapata’s claims against Officer Moran 14
were subject to dismissal for lack of timely service and 15
should be dismissed with prejudice as time-barred because 16
the statute of limitations had run since the filing of the 17

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6
complaint. On November 23, 2005, Zapata responded to the 1
City’s motion to dismiss and cross-moved for an extension, 2
nunc pro tunc, of the time in which to serve Officer Moran. 3
Zapata claimed that he was unaware of Officer Moran’s first 4
name, badge number or work location when he filed the 5
complaint. The City’s reply memorandum attached Zapata’s 6
September 2002 administrative claim form, which lists 7
Officer Moran’s badge number and work location. In a 8
memorandum in further support of the cross-motion, Zapata’s 9
counsel explained that she did not know of the existence of 10
the claim form until she received the City’s reply, and she 11
argued that the City should have included a copy of the 12
claim form in its initial disclosures. 13
Zapata’s memoranda (in opposition to the motion to 14
dismiss and in further support of the cross-motion) argued 15
that the service period should be extended either for good 16
cause or in light of the harsh application of the statute of 17
limitations. According to Zapata’s memoranda, the 1993 18
Amendments to Rule 4 allowed district courts to grant 19
extensions even in the absence of good cause. 20
By memorandum opinion on January 31, 2006, the court 21

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7
dismissed Zapata’s claims against the City (a decision which 1
Zapata does not challenge on appeal) and dismissed Zapata’s 2
claims against Moran as time-barred and declined to grant 3
Zapata an extension of the service period: 4
Proof of service . . . confirms this service, 5
four days beyond the 120 day period provided 6
in Rule 4, Fed. R. Civ. P. The Statute of 7
Limitations for the Constitutional tort sued 8
on expired on June 28, 2005. Service of 9
process on Moran made within 120 days would 10
have related back to the filing of the lawsuit 11
on May 18, 2005 and would have been timely. 12
Prejudice is assumed in the case of 13
individuals sued after the Statute of 14
Limitations has run. Such cases differ from 15
those situations cited by Plaintiff where the 16
claim itself is not time-barred, but service 17
is late under Rule 4. . . . The case is 18
dismissed as to defendant Moran as time- 19
barred. 20
21
Zapata v. City of New York, No. 05 Civ. 4799, slip op. at 2- 22
4 (S.D.N.Y. Jan. 31, 2006). Zapata’s cross-motion to extend 23
the service period nunc pro tunc, which the district court 24
described as a “[c]ross-Motion . . . for an extension of 25
time to serve papers in opposition to the motion to 26
dismiss,” was deemed moot in light of the resolution of the 27
motion to dismiss. Id. at 1. 28
This timely appeal followed. 29
30

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8
DISCUSSION 1
I 2
Federal Rule of Civil Procedure 4(m) governs both (1) 3
the dismissal of actions for untimely service of process and 4
(2) extensions of the time in which service may be effected. 5
We review for an abuse of discretion a district court’s Rule 6
4(m) dismissal for failure to serve process. See Thompson 7
v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002). 8
Under Rule 4(m), 9
[i]f service of the summons and complaint is not 10
made upon a defendant within 120 days after the 11
filing of the complaint, the court . . . shall 12
dismiss the action without prejudice . . . or 13
direct that service be effected within a specified 14
time; provided that if the plaintiff shows good 15
cause for the failure, the court shall extend the 16
time for service for an appropriate period. 17
18
Prior to 1993, the substance of this rule appeared in 19
the former Rule 4(j), which provided that if service was not 20
made within 120 days, and the serving party “cannot show 21
good cause why such service was not made within that period, 22
the action shall be dismissed as to that defendant without 23
prejudice.” The Advisory Committee notes to the 1993 24
Amendment disclosed the purpose of the amendment: 25
The new subdivision explicitly provides that 26

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9
the court shall allow additional time if there 1
is good cause for the plaintiff’s failure to 2
effect service in the prescribed 120 days, and 3
authorizes the court to relieve a plaintiff of 4
the consequences of an application of this 5
subdivision even if there is no good cause 6
shown . . . . Relief may be justified, for 7
example, if the applicable statute of 8
limitations would bar the refiled action, or 9
if the defendant is evading service or 10
conceals a defect in attempted service. 11
12
Before the 1993 Amendments, we generally did not 13
approve an extension absent a showing of good cause, even 14
when a statute of limitations would bar the re-filed action 15
and effectively convert the dismissal without prejudice 16
under Rule 4(m) into a dismissal with prejudice. See, e.g., 17
McGregor v. United States, 933 F.2d 156 (2d Cir. 1991); 18
Frasca v. United States, 921 F.2d 450 (2d Cir. 1990). But 19
since 1993, those of our sister circuits that have 20
considered the issue have heeded the Advisory Committee and 21
held that district courts have the discretion to grant 22
extensions of the service period even where there is no good 23
cause shown; and this is consistent with a passing comment 24
from the Supreme Court on the issue. See, e.g., Henderson 25
v. United States, 517 U.S. 654, 662-63 (1996) (“[I]n 1993 26
amendments to the Rules, courts have been accorded 27

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10
discretion to enlarge the 120-day period ‘even if there is 1
no good cause shown.’” (quoting Fed. R. Civ. P. 4(m) Adv. 2
Comm. Notes)); Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 3
1132-33 (11th Cir. 2005); Panaras v. Liquid Carbonic Indus., 4
94 F.3d 338, 340-41 (7th Cir. 1996); Espinoza v. United 5
States, 52 F.3d 838, 840-41 (10th Cir. 1995); Petrucelli v. 6
Bohringer and Ratzinger, Gmbh, 46 F.3d 1298, 1304-08 (3d 7
Cir. 1995). 8
While we have not decided the question, our opinion in 9
Bogle-Assegai v. Connecticut expressed skepticism about 10
granting extension without good cause: we rejected as 11
“unsupported by any authority of this Court” the contention 12
that plaintiff “was not required to show good cause in order 13
to be given an extension of time to make proper service.” 14
470 F.3d 498, 508 (2d Cir. 2006). This observation was 15
linked to the factual context of that case: “Bogle-Assegai, 16
who was neither a pro se litigant nor incarcerated, made no 17
showing whatever as to any effort on her part to effect 18
personal service . . . . And . . . she also made no effort 19
to show good cause for her failure and never requested an 20
extension of time [while] the case was pending after she 21

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11
first learned of the [defendants’] objections to service.” 1
Id. at 509. Thus Bogle-Assegai declined to vacate because 2
the plaintiff failed to advance any cognizable excuse for 3
neglect--even one falling short of good cause. We therefore 4
do not read that decision to hold categorically that good 5
cause is required in every case for an extension of the 6
service period under Rule 4(m). Such a reading of Bogle- 7
Assegai would be inconsistent with the wording of the rule 8
and the views of the Supreme Court. 9
We hold that district courts have discretion to grant 10
extensions even in the absence of good cause. But this 11
holding does not in itself resolve Zapata’s appeal. 12
13
II 14
Zapata complains that the district court failed to 15
consider the impact of the 1993 amendments on the former 16
Rule 4(j); this contention necessitates closer attention to 17
the two-clause structure of the post-1993 Rule 4(m), which 18
provides that if service is not effected within 120 days, 19
20
[1] “the court . . . shall dismiss the action without 21

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12
prejudice . . . or direct that service be effected 1
within a specified time”; but that 2
3
[2] “if the plaintiff shows good cause for the failure, 4
the court shall extend the time for service for an 5
appropriate period.” 6
7
8
Some of our sister circuits have characterized the 9
second clause to govern “mandatory” good cause extensions 10
and the first clause to govern “discretionary” extensions in 11
the absence of good cause. See Coleman v. Milwaukee Bd. of 12
Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002); De Tie v. 13
Orange County, 152 F.3d 1109, 1112 n.5 (9th Cir. 1998); 14
Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997); 15
Espinoza, 52 F.3d at 841. 16
It is clear under the second clause of Rule 4(m) that 17
an extension is always warranted upon a showing of “good 18
cause,” because the rule commands that an “appropriate” 19
extension “shall” be granted upon such a showing. But it is 20
perhaps misleading to describe the provision as “mandatory.” 21
After all, the district court’s determinations on whether 22

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13
good cause is present (and, if so, how long an extension 1
would be appropriate) are exercises of discretion. See 2
Thompson, 309 F.3d at 110; Troxell v. Fedders of N. Am., 3
Inc., 160 F.3d 381, 382-83 (7th Cir. 1998). 4
The first clause of Rule 4(m), which makes no mention 5
of good cause, grants discretion to district courts in a 6
backhanded fashion by dictating that they “shall” take a 7
certain action once 120 days have passed without service: 8
they must decide to dismiss . . . or decide not to dismiss. 9
But no criteria for this decision are supplied in the rule 10
itself; this silence commits extensions in the absence of 11
good cause, like determinations on the presence of good 12
cause, to the sound discretion of the district court. 13
Some circuits require district courts to engage in a 14
formal two-step inquiry to first evaluate good cause and 15
then demonstrate their awareness that an extension may be 16
granted even in the absence of good cause. See, e.g., 17
Panaras, 94 F.3d at 340-41; Petrucelli, 46 F.3d at 1305. In 18
our view, whether such a bifurcated inquiry would be useful 19
is a question best left to the district court: the two steps 20
inevitably involve a weighing of overlapping equitable 21

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5 Zapata’s brief to this Court argues solely that the
district court failed to consider a “discretionary”
extension under the 1993 Amendments to Rule 4, and Zapata
has therefore abandoned any claim to an extension for good
cause.
14
considerations; and we owe deference to the district court’s 1
exercise of discretion whether or not it based its ruling on 2
good cause. So we require no mechanical recitation of the 3
implications of the 1993 Amendment. 4
Where, as here, good cause is lacking,5 but the 5
dismissal without prejudice in combination with the statute 6
of limitations would result in a dismissal with prejudice, 7
we will not find an abuse of discretion in the procedure 8
used by the district court, so long as there are sufficient 9
indications on the record that the district court weighed 10
the impact that a dismissal or extension would have on the 11
parties. 12
Here, there are abundant indications that the district 13
court was made aware of the scope of its discretion: Zapata 14
argued to the district court both that he had shown good 15
cause and that the time-bar justified an extension even in 16
the absence of good cause; acknowledging Zapata’s citation 17
of the latter principle, the district nonetheless denied an 18

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6 Zapata raises no explicit challenge to the district
court’s decision to deny an extension of the service period
and simultaneously to dismiss his action with prejudice as
time-barred. We therefore do not address the issue.
15
extension based on the prejudice that Officer Moran would 1
suffer by being forced to defend a time-barred action. 2
3
III 4
Zapata argues that, aside from the procedure the 5
district court utilized, it was required to grant an 6
extension in light of the absence of prejudice to Officer 7
Moran and the great prejudice to Zapata arising from the 8
operation of the statute of limitations.6
9
As we have held, a district court may grant an 10
extension in the absence of good cause, but it is not 11
required to do so. See Coleman, 290 F.3d at 934. Moreover, 12
our holding in Bogle-Assegai suggests that, before we will 13
even consider vacating a Rule 4(m) dismissal for abuse of 14
discretion, the plaintiff must ordinarily advance some 15
colorable excuse for neglect. 470 F.3d at 509 (declining to 16
consider plaintiff’s argument that she was not required to 17
show good cause because “[i]n any event, [the plaintiff] 18

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7 Because Zapata was denied an extension, we express no
opinion on what circumstances will indicate an abuse of
discretion where a district court has granted an extension
without a showing of good cause. See generally Efaw v.
Williams, 473 F.3d 1038, 1040-41 (9th Cir. 2007). While we
read Bogle-Assegai to indicate that this Court will not
disturb a district court’s dismissal absent some colorable
excuse raised by the plaintiff, nothing in our opinion
should be read as a per se rule that district courts must
require such an excuse in all cases.
16
made no showing whatever as to any effort on her part to 1
effect personal service[,] made no effort to show good cause 2
for her failure and never requested an extension of time 3
[while] the case was pending”); see also Coleman, 290 F.3d 4
at 934-35 (citing the plaintiff’s failure to properly effect 5
timely serve “with no even colorable justification” after 6
holding that “the fact that the balance of hardships favors 7
the plaintiff does not require the district judge to excuse 8
the plaintiff’s failure to serve the complaint and summons 9
within the 120 days provided by the rule” (emphasis 10
added)).7
11
Zapata takes issue with the district court’s statement 12
that prejudice to Officer Moran was “assumed” because the 13
statute of limitations had run. According to Zapata, this 14
reasoning was erroneous and constituted an abuse of 15
discretion, because it is the prejudice to the plaintiff 16

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17
that would most naturally be “assumed” where a dismissal 1
without prejudice would time-bar the action. This is a fair 2
point; the Advisory Committee Notes to the 1993 Amendments 3
specifically mention that an extension might be justified 4
where statute of limitations would bar the refiling of an 5
action. And at least one circuit has held that district 6
courts may not deny an extension solely based on the 7
prejudice to the defendant arising from the statute of 8
limitations. See Boley, 123 F.3d at 759. But we decline to 9
adopt such a per se rule on the matter. It is obvious that 10
any defendant would be harmed by a generous extension of the 11
service period beyond the limitations period for the action, 12
especially if the defendant had no actual notice of the 13
existence of the complaint until the service period had 14
expired; and it is equally obvious that any plaintiff would 15
suffer by having the complaint dismissed with prejudice on 16
technical grounds--this is no less true where the technical 17
default was the result of pure neglect on the plaintiff’s 18
part. But in the absence of good cause, no weighing of the 19
prejudices between the two parties can ignore that the 20
situation is the result of the plaintiff’s neglect. Thus, 21

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18
while we disagree with the district court’s formulation that 1
a dispositive degree of prejudice to the defendant is 2
“assumed” when statute of limitations would bar the re-filed 3
action, we leave to the district courts to decide on the 4
facts of each case how to weigh the prejudice to the 5
defendant that arises from the necessity of defending an 6
action after both the original service period and the 7
statute of limitations have passed before service. 8
In any event, Zapata’s assertion that Officer Moran 9
suffered no prejudice from service only a few days outside 10
the period of service is misleading; while the limitations 11
period was tolled for the service period, prejudice does not 12
toll. Nothing in the record besides the 2002 incident 13
itself suggests Officer Moran had any notice that the action 14
was forthcoming (much less already pending), and service was 15
effected almost three months after the limitations period 16
would have run had the complaint never been filed. 17
Even assuming the prejudice to Officer Moran was 18
slight, and taking into account the district court’s 19
unfortunate choice of language in denying an extension, we 20
find no abuse of discretion. Like the plaintiff in Bogle- 21

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19
Assegai, Zapata made no effort to effect service within the 1
service period, neglected to ask for an extension within a 2
reasonable period of time, and has advanced no cognizable 3
excuse for the delay. Zapata’s only justification--that he 4
was unaware of Officer Moran’s badge number and the location 5
at which he could be served--is flatly contradicted by the 6
record. Zapata filed an administrative claim in 2002-- 7
nearly three years before he filed his complaint--that 8
contained a cursory description of the incident along with 9
Officer Moran’s last name, badge number, and work location 10
(the Anna M. Cross Center at Riker’s Island). In spite of 11
Zapata’s possession of this information, he neither made any 12
attempt to serve Officer Moran at the Rikers Island facility 13
during the 120-day service period nor made any attempt 14
during that period to ask the Court for an extension of time 15
in which to serve Officer Moran. Nothing on the record 16
indicates that Zapata ever requested any information from 17
the City on the issue even though the City pointed out the 18
failure to serve Officer Moran when it made its request for 19
an enlargement of time to answer (nearly three months before 20
the end of the service period) and when it served its answer 21

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8 Zapata also contends that we should vacate the
district court’s decision because of its alleged failure to
correctly describe Zapata’s motion to extend the service
period nunc pro tunc--the district court’s decision can be
20
(more than three weeks before the end of the service 1
period). Zapata finally attempted to serve Officer Moran at 2
Rikers Island after the 120-day service period had passed, 3
and even then, rather than immediately asking the district 4
court to bless the untimely service by granting an 5
extension, Zapata waited two months to seek an extension 6
nunc pro tunc after receiving the City’s motion to dismiss. 7
While Zapata initially responded to the City’s motion to 8
dismiss by claiming to have been unaware of Officer Moran’s 9
badge number and work location, Zapata’s later papers and 10
his brief to this Court state that Zapata’s counsel was 11
unaware that Zapata knew Officer Moran’s badge number; 12
counsel avers that she assumed that the City would 13
gratuitously supply the information necessary to effect 14
service which she could not (or would not) obtain from her 15
client. In this context, a description of poor 16
communication between client and counsel is a confession of 17
neglect, not an excuse for it. On these facts, we find no 18
abuse of discretion in the district court’s judgment.8
19

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read to erroneously describe the cross-motion as seeking an
extension of time in which to oppose the City’s motion to
dismiss. (In our view, the district court’s ambiguous
language can also be read to describe the cross-motion for
an extension as being a free-standing opposition to the
motion to dismiss that is moot in light of the district
court’s incorporation of the Rule 4 issue into its ruling on
the motion to dismiss.) Whether or not the district court
correctly described the motion, it confronted the merits of
the issue under Rule 4 and made reference to Zapata’s
citations to authority on the propriety of an extension. So
we are confident that the district court would have reached
the same conclusion regardless of the manner in which it
described Zapata’s motion, and there is no need for a remand
on this basis.
21
1
CONCLUSION 2
3
For foregoing reasons, the judgment of the district 4
court is hereby AFFIRMED. 5
6

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