Opinion

Brown v. Zeta Charter School

Court
District Court, S.D. New York
Filed
Aug 3, 2023
Cited by
0 cases
Authority
More cited than 27.6%

holding that it is the plaintiff’s responsibility to request an extension of time for service

How later courts described this case

  • holding that it is the plaintiff’s responsibility to request an extension of time for service

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CYNTHIA BROWN,

Plaintiff,

23 Civ. 5593 (KPF)

-v.-

ORDER OF SERVICE

ZETA CHARTER SCHOOL,

Defendant.

KATHERINE POLK FAILLA, District Judge:

Plaintiff Cynthia Brown, of the Bronx, New York, brings this pro se action

invoking the court’s federal-question jurisdiction. She sues Defendant “Zeta

Charter School,” which the Court understands to be the Zeta Bronx Mount

Eden Early Childhood School, also of the Bronx, arising from the alleged

termination of Plaintiff’s minor daughter’s education at that school. The Court

construes Plaintiff’s complaint as asserting claims under the Individuals with

Disabilities Education Act, the Americans with Disabilities Act of 1990, and,

possibly, the Rehabilitation Act of 1973, as well as claims under state law.

By order dated June 30, 2023, the court granted Plaintiff’s request to

proceed in forma pauperis (“IFP”), that is, without prepayment of fees. (Dkt.

#3). The Court directs service on the defendant.

DISCUSSION

A. Service on the Defendant

Because Plaintiff has been granted permission to proceed IFP, she is

entitled to rely on the Court and the U.S. Marshals Service to effect service.1

Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C.

§ 1915(d) (“The officers of the court shall issue and serve all process ... in [IFP]

cases.”); Fed. R. Civ. P. 4(c)(3) (stating that the Court must order the Marshals

Service to serve if the plaintiff is authorized to proceed IFP).

To allow Plaintiff to effect service on the defendant through the U.S.

Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals

Service Process Receipt and Return form (“USM-285 form”) for the defendant.

The Clerk of Court is further instructed to issue a summons for the defendant,

and deliver to the Marshals Service all the paperwork necessary for the

Marshals Service to effect service upon the defendant.

If the complaint is not served on the defendant within 90 days after the

date the summons is issued, Plaintiff should request an extension of time for

service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is

the plaintiff’s responsibility to request an extension of time for service).

1 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a

summons be served within 90 days of the date the complaint is filed, Plaintiff is

proceeding IFP and could not have served a summons and the complaint until the

Court reviewed the complaint and ordered that a summons be issued. The Court

therefore extends the time to serve until 90 days after the date that a summons is

issued.

Plaintiff must notify the Court in writing if her address changes, and the

Court may dismiss the action if Plaintiff fails to do so.

B. New York Legal Assistance Group

Plaintiff may consider contacting the New York Legal Assistance Group’s

(“NYLAG”) Clinic for Pro Se Litigants in the Southern District of New York,

which is a free legal clinic staffed by attorneys and paralegals to assist those

who are representing themselves in civil lawsuits in this court. The clinic is

operated by a private organization; it is not part of, or operated by, the court.

It cannot accept filings on behalf of the court, which must still be made by any

pro se party through the court’s Pro Se Intake Unit. A copy of the flyer with

details of the NYLAG clinic is attached to this order.

CONCLUSION

The Court directs the Clerk of Court to mail an information package to

Plaintiffs address of record.

The Court also directs the Clerk of Court to issue a summons for the

defendant, complete a USM-285 form with the address for the defendant, and

deliver all documents necessary to effect service on the defendant to the U.S.

Marshals Service.

SO ORDERED.

Dated: Now York, New York Kathe fal ki ihn

KATHERINE POLK FAILLA

United States District Judge

DEFENDANT AND SERVICE ADDRESS

Zeta Charter School

Zeta Bronx Mount Eden Early Childhood School

1325 Jerome Avenue

Bronx, New York 10452

= = eee 14 ESE ° .

New York ME Legal Assistance Group District of New York

The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York provides free limited legal

assistance to individuals who are representing themselves or planning to represent themselves in civil lawsuits

in federal court in Manhattan and White Plains. The clinic is staffed by attorneys, law students, and paralegals.

Information given to clinic staff is confidential.

Clinic Staff Can: Clinic Staff Cannot:

Advise on filing cases in federal court e Assist with federal civil cases that belong in a

including on the issue of whether a = 3 different federal court, such as the Eastern District of

should be filed in the Southern District of New York, which covers of New York, which covers

New York or somewiierocisd Brooklyn, Queens, Staten Island, and Nassau and

Provide legal advice in response to questions Suffolk Counties;

that come up at any stage of litigation; e Assist with an appeal of your federal case;

Assist in getting additional information or e Assist with state court cases, bankruptcy court cases,

research into the legal issue in your case; or criminal cases; oo

Review and explain court orders and filings ¢ Pay any of the costs associated with filing or

by your opponent, and provide an overview of defending a lawsuit in federal court;

the federal legal process in civil cases e File documents with the court on your behalf;

generally; e Appear on your behalf other than representation at a

Assist with motions, discovery, and strategy; mediation through the Southern District’s Alternative

Assist with getting ready for depositions, Dispute Resolution Program, a court-ordered

pretrial conferences, mediations, and court settlement conference, or, in appropriate cases, a

appearances; deposition;

Provide forms and instructions manuals; ° Write court documents for you, or

In appropriate cases, help you retain bono ° Conduct an investigation into the facts of your case.

counsel;

Inappropriate cases, represent you in a Clinic Staff May Decline Assistance If:

mediation through the Southern District’s

Alternative Dispute Resolution Program, ora NYLAG has already given advice to your opponent;

court-ordered settlement conference; e Your legal problem is beyond the scope of matters

Inappropriate cases, represent you at a handled by the clinic;

deposition; and e Providing assistance would conflict with the New York

Inappropriate cases, provide referrals to Rules of Professional Conduct;

other agencies and organizations that provide e Your income and/or assets are high enough to allow you

civil legal services and/or social services. to retain private counsel; or

e NYLAG determines, in its professional legal judgement,

that (i) you have refused to cooperate with the Clinic’s

counsel or follow the Clinic’s advice; (ii) any assistance

would be unreasonably difficult for NYLAG to carry out;

or (iii) your case is or will become frivolous,

unreasonable, groundless, or without merit.

¢ a bene

https://nylagoi.legalserver.org/modules/matter/extern_intake.php?pid=142&h=cea984& UJA ) □□□

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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