United States District Court, D. Massachusetts
TELMA I. DEPINA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner for the Social Security Administration Defendant.
MEMORANDUM AND ORDER
Talwani United States District Judge.
action was dismissed on August 11, 2017, pursuant to Rule
4(m) of the Federal Rules of Civil Procedure. Now before the
court is Plaintiff's motion to reopen the case. For the
following reasons, Plaintiff's motion is denied.
October 7, 2016, Plaintiff filed this pro se action
seeking judicial review of the adverse administrative
decision concerning her benefits application. See
Complaint, Docket No. 1. Her motion for leave to proceed
in forma pauperis was allowed on October 13, 2016,
and the Clerk issued summons for service. See Order,
Docket No. 7. Over five months later, when no proof of
service was filed as required by Fed.R.Civ.P. 4(1)(1), the
court issued an order to show cause by April 11, 2017, why
the case should not be dismissed for failure to serve
pursuant to Fed.R.Civ.P. 4(m). See Order to Show
Cause, Docket No. 11. A response was filed by Plaintiff on
April 11, 2017, requesting an extension deadline.
See Response, Docket No. 13.
April 25, 2017, the court granted an extension of time and
ordered Plaintiff, by June 23, 2017, to serve the Defendant
and file returns of service with the Court in accordance with
Rule 4 of the Federal Rules of Civil Procedure. See
Order, Docket No. 14. The order explained that the time for
service was extended as a courtesy “for one final 60
day period.” Id. The order further explained
that if she elected to have the United States Marshal Service
effect service on the Defendant, she must provide the United
States Marshal Service with all necessary paperwork.
Id. Finally, the order cautioned that the action
will be dismissed if Plaintiff “does not properly serve
23, 2017, the deadline for effecting service, Plaintiff filed
a request for extension of time. See Motion, Docket
No. 16. In the motion, Plaintiff explains that on June 23,
2017, she “went to the U.S. Marshal Office [and was
told to] request for an extension.” Id.
Plaintiff states that she then “came to the District
Court to bring additional medical paperwork.”
Id. Plaintiff states that she had “received
the form USM-285 to serve defendant” but that she
believed “that defendant was already notified of this
case [and that Plaintiff] didn't know [that she] need[ed]
to serve them since this [is] a prior case.”
12, 2017, the court granted Plaintiff “a final
three-week window to have the complaint served by the U.S.
Marshals Service.” See Order, Docket No. 18.
The Order was sent to Plaintiff with a copy of the April 25,
2017, order which provided further explanation regarding
service requirements. Id.
proof of service was filed, the court, on August 11, 2017,
entered an order of dismissal pursuant to Fed.R.Civ.P. 4(m)
for failure to timely serve the Defendant. See
Order, Docket No. 20. The order stated that the court had
twice extended the deadline for Plaintiff to serve the
now seeks to reopen the case. See Motion to Reopen,
Docket No. 22. Among other things, Plaintiff states that she
“didn't know [that she is] responsible to get a
receipt that defendant [has] been served.” Id.
court construes Plaintiff's motion to reopen as one for
reconsideration. A court's reconsideration of a decision
is “an extraordinary remedy which should be used
sparingly.” Palmer v. Champion Mortg., 465
F.3d 24, 30 (1st Cir. 2006). “[S]imple disagreement
with the court's decision is not a basis for
reconsideration.” Ofori v. Ruby Tuesday, Inc.,
205 Fed.Appx. 851, 853 (1st Cir. 2006) (unpublished).
it is almost eleven months since this complaint was
originally filed. Since that time, Plaintiff was provided
with instructions for service. As to her contention that she
didn't know that she was responsible for filing proof of
service, the April 25, 2017 Order directed her to serve the
Defendant and file returns of service with this Court.
Plaintiff was provided ample warning that her case would be
dismissed if she did not properly serve the Defendant.
Plaintiff does not contest the Court's finding that she
failed to timely serve her complaint and she fails to plead
circumstances that would provide a basis for reopening. Given
these circumstances, Plaintiff's motion will be denied.
upon the foregoing, it is ...