Welch et al v. Dale et al

Filing 29

OPINION AND ORDER that plaintiffs Larry Welch and Loletha Jones's motion for extension of time 14 is granted and that they are allowed 90 days, calculated from the date the first extension expires, to perfect service on defendant Gregory Wishard Dale. Signed by Honorable Judge Myron H. Thompson on 12/27/2012. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

LARRY EUGENE WELCH and
LOLETHA JONES,

)
)
)
Plaintiffs,
)
)
v.
)
)
GREGORY WISHARD DALE and
)
LOGICORP ENTERPRISES, LLC, )
)
Defendants.
)

CIVIL ACTION NO.
3:12cv393-MHT
(WO)

OPINION AND ORDER
Plaintiffs Larry Welch and Loletha Jones ask this
court for more time to serve defendant Gregory Wishard
Dale.

This is the second time they have made such a

request.
The

court

has

jurisdiction

over

the

plaintiffs’

personal-injury lawsuit pursuant to 28 U.S.C. § 1332
(diversity of citizenship).

For reasons that follow, the

court will grant the plaintiffs’ motion to extend for
another 90 days the time allowed for service.

A.
A plaintiff must serve process on a defendant “within
120 days after the complaint is filed.” Fed. R. Civ. P.
4(m).

If the plaintiff fails to do so, “the court--on

motion or on its own after notice to the defendant--must
dismiss

the

defendant

or

action
order

specified time.”

Id.

without
that

prejudice

service

be

against

made

the

within

a

“But if the plaintiff shows good

cause for the failure, the court must extend the time for
service

for

an

appropriate

period.”

Id.

However,

“[e]ven in the absence of good cause, a district court
has the discretion to extend the time for service of
process.”

Lepone-Dempsey v. Carroll County Comm'rs, 476

F.3d 1277, 1281 (11th Cir. 2007).

Indeed, “when a

district court finds that a plaintiff fails to show good
cause[,]

...

the

district

court

must

still

consider

whether any other circumstances warrant an extension of
time based on the facts of the case.”

Id. at 1282. “Only

after considering whether any such factors exist may the

2

district court exercise its discretion and either dismiss
the case without prejudice or direct that service be
effected within a specified time.”

Id.

Thus, “Rule 4(m) has mandatory and discretionary
components.”

Boyd v. Koch Foods of Alabama, LLC,

WL 6141064, *2 (M.D. Ala. 2011) (Thompson, J.).

2011

“If good

cause is present, the district court must extend time for
service.
its

If good cause does not exist, the court may, in

discretion,

decide

whether

to

dismiss

without prejudice or extend time for service.”

the

case

Thompson

v. Brown, 91 F.3d 20, 21 (5th Cir. 1996) (emphasis in
original).
Though the Federal Rules of Civil Procedure do not
define

“good

Appeals

has

cause,”

the

explained

Eleventh

that

mere

Circuit

Court

of

“inadvertence

or

negligence” does not amount to good cause.

Lepone-

Dempsey, 476 F.3d at 1281 (quoting Prisco v. Frank, 929
F.2d 603, 604 (11th Cir. 1991) (per curiam), superseded
in part by rule as stated in Horenkamp v. Van Winkle and

3

Co., Inc., 402 F.3d 1129, n.2 (11th Cir. 2005)).

Rather,

good cause “exists ‘only when some outside factor[,] such
as

reliance

on

faulty

advice,’”

is

to

blame.

Id.

(alteration in original) (quoting Prisco, 929 F.2d at
604.).

Therefore, a plaintiff demonstrating good cause

for his or her delay must show he or she “(1) has
proceeded in good faith; (2) has a reasonable basis for
noncompliance and (3) the basis for the delay was more
than simple inadvertence or mistake.”

Durgin v. Mon, 659

F. Supp. 2d 1240, 1258 (S.D. Fla. 2009) (Marra, J.).

The

court finds the plaintiffs in the instant case have shown
good cause for their failure to serve Dale in a timely
manner.
The plaintiffs filed this lawsuit on May 1, 2012.
Three

days

later,

they

sent

requests

for

waiver

of

service via certified mail to Dale and to Jorge Andrade,
the

registered

Enterprises, LLC.

agent

for

co-defendant

Logicorp

To reach Dale, the plaintiffs used the

address he provided law enforcement at the time of the

4

collision, July 2, 2010.
returned unclaimed.

Nonetheless, Dale’s mailing was

On June 29, 2012, the plaintiffs’

counsel called Dale on the phone.

According to the

plaintiffs, Dale ended the call once the plaintiffs’
counsel identified himself and asked for Dale’s address.
With the 120-day window for effecting service closing
in, the plaintiffs filed their first motion to extend.
The

court

agreed

that

there

was

good

cause

for

an

extension and, on August 31, 2012, gave the plaintiffs an
additional 90 days to serve Dale.

Two weeks later, the

plaintiffs hired a professional company specializing in
process service.

The company, Pronto Process Service,

found a new address for Dale in Corinth, Texas.

The

plaintiff represents that Pronto Process has since made
ten separate attempts to serve Dale at various hours,
both day and night.

On October 8, 2012, Pronto Process

spoke with Dale’s minor daughter, who confirmed that Dale
does indeed live at the Corinth address.

Pronto Process

left with her a copy of the summons and complaint, along

5

with a business card and message asking her father to
contact the plaintiffs’ counsel.
The

plaintiffs

through

his

also

employer

made
and

efforts

to

co-defendant,

serve

Dale

Logicorps.

Logicorps would not accept service for Dale, nor has it
responded to discovery requests aimed at ascertaining
Dale’s travel schedule.
In light of these representations, the court finds
the plaintiffs have been diligent in attempting to make
service.

Their lack of success does not appear rooted in

mistake or negligence, but in an outside factor.

The

plaintiffs cannot be faulted for relying on the address
Dale provided law enforcement.

More importantly, once

they realized the address was incorrect, they reached out
to Dale via telephone, through his employer, and with a
professional process server.
be

drawn

from

the

A reasonable inference can

plaintiffs’

numerous

attempts that Dale is evading service.

frustrated

The court thus

concludes that the plaintiffs have good cause for failing

6

to serve Dale in the time allotted, and the court must
extend the time for service for an “appropriate period.”
Fed. R. Civ. P. 4(m).
Moreover, even were the court to conclude that good
cause within the meaning of Rule 4(m) is lacking, the
court would still use its discretion to extend the time
for service on Dale.

First, as stated, it is clear from

the current record that Dale is avoiding service; he is
thus

well-aware

of

the

complaint

against

him.

See

Lepone-Dempsey, 476 F.3d at 1282. (“[T]he Advisory Note
to Rule 4(m) provide[s] some guidance as to what factors
may justify the grant of an extension of time absent a
showing of good cause.”

And, “the Committee [there]

explained that ‘[r]elief may be justified, for example,
... if the defendant is evading service.’”) (quoting
Fed. R. Civ. P. 4(m), Advisory Committee Note, 1993
Amendments); American Indoor Football Ass'n, Inc. v.
Lockwood,
(Thompson,

267
J.)

F.R.D.
(Rule

663,
4(m)

7

666

(M.D.

discretionary

Ala.

2010)

extension

warranted because “there is compelling evidence that
[defendant]

has

intentionally

evaded

diligent efforts to perfect service.

[plaintiff]’s

Moreover, there is

good reason to believe that, despite his evasive efforts,
he is well-aware of the complaint against him.”).
Second, it appears that the statute of limitations
may have run since the plaintiffs filed their claims.
See Horenkamp, 402 F.3d at 1133 (“Although the running of
the

statute

of

limitations

does

not

require

that

a

district court extend the time for service of process
under the new rule, ... we agree with the district court
that the circumstances of this case militate in favor of
the exercise of the district court's discretion to do
so.”) (citations omitted).

B.
The plaintiffs ask the court to set a new deadline
for service: 60 days from the date on which Logicorps
responds to its aforementioned discovery request.

8

The

court, however, is not inclined to attach a deadline to
a moving target which is entirely within the parties’
control.

The

court

is

equally

concerned

that

the

plaintiffs’ proposed deadline lends itself to multiple
interpretations and could generate confusion.
Instead, the court will grant a further extension of
90 days calculated from the date the first extension
expires.
***
Accordingly, it is ORDERED that plaintiffs Larry
Welch and Loletha Jones’s motion for extension of time
(doc. no. 14) is granted and that they are allowed 90
days,

calculated

from

the

date

the

first

extension

expires, to perfect service on defendant Gregory Wishard
Dale.
DONE, this the 27th day of December, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE