Welch et al v. Dale et al
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
GREGORY WISHARD DALE and
LOGICORP ENTERPRISES, LLC, )
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiffs Larry Welch and Loletha Jones ask this
court for more time to serve defendant Gregory Wishard
This is the second time they have made such a
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 plaintiff must serve process on a defendant “within
120 days after the complaint is filed.” Fed. R. Civ. P.
If the plaintiff fails to do so, “the court--on
motion or on its own after notice to the defendant--must
“But if the plaintiff shows good
cause for the failure, the court must extend the time for
“[e]ven in the absence of good cause, a district court
has the discretion to extend the time for service of
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
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
district court exercise its discretion and either dismiss
the case without prejudice or direct that service be
effected within a specified time.”
Thus, “Rule 4(m) has mandatory and discretionary
Boyd v. Koch Foods of Alabama, LLC,
WL 6141064, *2 (M.D. Ala. 2011) (Thompson, J.).
cause is present, the district court must extend time for
If good cause does not exist, the court may, in
without prejudice or extend time for service.”
v. Brown, 91 F.3d 20, 21 (5th Cir. 1996) (emphasis in
Though the Federal Rules of Civil Procedure do not
negligence” does not amount to good cause.
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F.2d 603, 604 (11th Cir. 1991) (per curiam), superseded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
Co., Inc., 402 F.3d 1129, n.2 (11th Cir. 2005)).
good cause “exists ‘only when some outside factor[,] such
(alteration in original) (quoting Prisco, 929 F.2d at
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.).
court finds the plaintiffs in the instant case have shown
good cause for their failure to serve Dale in a timely
The plaintiffs filed this lawsuit on May 1, 2012.
service via certified mail to Dale and to Jorge Andrade,
To reach Dale, the plaintiffs used the
address he provided law enforcement at the time of the
collision, July 2, 2010.
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.
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
The company, Pronto Process Service,
found a new address for Dale in Corinth, Texas.
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.
left with her a copy of the summons and complaint, along
with a business card and message asking her father to
contact the plaintiffs’ counsel.
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
Their lack of success does not appear rooted in
mistake or negligence, but in an outside factor.
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.
A reasonable inference can
attempts that Dale is evading service.
The court thus
concludes that the plaintiffs have good cause for failing
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
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.
warranted because “there is compelling evidence that
diligent efforts to perfect service.
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
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).
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.
court, however, is not inclined to attach a deadline to
a moving target which is entirely within the parties’
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
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
expires, to perfect service on defendant Gregory Wishard
DONE, this the 27th day of December, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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