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William B. Esq.
William B. Esq., Attorney
Category: Legal
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Experience:  Civil litigation attorney for individuals and businesses.
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I am a pro se plaintiff as I dismissed my lawyer due to what

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I am a pro se plaintiff as I dismissed my lawyer due to what I will call constructive fraud among other things. I have a question that needs to be answered with the applicable laws and federal rules. I am opposing a motion for summary judgment. I must do this by August 17. I sought advice from Suffolk County attorney. He told me what to write on my first complaint and he scheduled an appointment at his office on March 26 2012and asked me to bring in $350 dollars and to file it with the eastern district court. He told me that I did not have to serve it on the defendants as he would amend my complaint which he did and he served the amended complaint on the defendants on June 19 2012. At this time, the defendants are seeking to dismiss the case based on failure to serve the first summons and complaint and based on the amended complaint not containing triable issues. Does rule 4(m) apply here? Is there a way that this can be remedied?

Submitted: 1 year ago.
Category: Legal
Expert:  Fran-mod replied 1 year ago.
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Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

Rule 4 does apply. If the Defendants were not served with both the summons and original complaint within 120 days you may do one of two things:

1) dismiss the case without prejudice (ensure the dismissal is without prejudice), and file a new lawsuit. Then serve the defendants with a new summons and complaint.

2) Petition the court in a motion to allow you to serve the defendants after the 120 days has passed showing "good cause" as to why you did not serve in the allotted time. Rule 4(m) allows for this exception. You can point to the fact that the Defendants have appeared in the action to oppose the service if it is helpful to your motion.

I cannot advise you as to your case, but I will note, if you are running up against the statute of limitations, be very careful. If you dismiss your case and refile, and your statute of limitations has run prior to the date of your new case, you will lose based on the necessity to refile. (if this is the case, include it in your motion under option 2).

I hope that my answer was of assistance to you. My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Please remember to rate my service once you have all the information you need. Thank you for your business!
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3070
Experience: Civil litigation attorney for individuals and businesses.
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