Holyoke Mutual Insurance Co v. East Arkansas Area Agency on Aging et al

Filing 32

ORDER reopening and extending the time for service until 8/31/2017. 23 Motion for belated extension is granted as modified. The 25 Second Motion to dismiss is denied with a carve out. The Agency's charitable immunity is one of the deep issues in the case. The Court still doesn't have enough information to rule on that issue. The Agency may press this defense in due course. Signed by Judge D. P. Marshall Jr. on 1/5/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
HOLYOKE MUTUAL INSURANCE CO.,
d/b/a Middleoak a/s/o Aspen Garden
Apartments

v.

PLAINTIFF

No. 3:17-cv-83-DPM

EAST ARKANSAS AREA AGENCY
ON AGING, INC. and CYNTHIA
UNDERWOOD

DEFENDANTS

ORDER
1.

This subrogation case is bogged down in service-related

problems. Holyoke paid claims arising from a bad fire at the Aspen
Garden apartments.

The fire took an older resident's life.

The

investigation revealed that the resident's caregiver, Underwood, may
have been at fault through a cigarette. Holyoke now seeks recovery
from Underwood and h er employer, the East Arkansas Area Agency
on Aging, Inc. Most, if not all, of the service-related facts are agreed.
The Agency and Underwood (through their common counsel) ask the
Court to dismiss, while Holyoke asks for cure.
2.

Holyoke sued in April 2017, about a week before the statute

of limitations ran. The complaint contained a misnomer: Holyoke left
off the "Inc." at the end of East Arkansas Area Agency on Aging, Inc.' s
name. This error was echoed in the summons, which had other defects.

For example, it included the wrong zip code and (it turned out) a
completely wrong address for Underwood.

NQ 21 at 3. Plus the

summons served had no raised seal. Holyoke served the defective
process on the Agency correctly under Arkansas law - by mail
restricted to the Agency's agent for service. NQ 23-1at13; ARK. R. CIV.
P. 4(d)(8)(A)(i). Holyoke tried to serve Underwood by certified and
restricted-delivery mail, but the letter came back undeliverable. NQ232 at 2. The Agency and Underwood responded with a timely motion to
dismiss, arguing the misnomer and the defects in the summons. The
Agency and Underwood also filed a joint answer, preserving all their
service-related and process-related defenses. In late May and early
June, Holyoke responded to the motion and filed an amended
complaint correctly naming the Agency.

Holyoke sent the new

pleading, plus corrected summonses, to defense counsel. By cover
letter, Holyoke asked counsel to waive service, enclosing a return
envelope and (the Court assumes) the Rule 4 waiver form. FED. R. CIV.
P. 4(d)(l). In mid-June, the Agency and Underwood answered, again
preserving all their service-related and process-related defenses. NQ15.
In early July, the Court denied the first motion to dismiss without
prejudice. NQ 17. The Court noted several things: good service was
required; Holyoke had started its cure with the amended complaint;
and it planned to finish by the ninety-day deadline, which the Court
calculated as 17 July 2017, right around the comer.
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Around the same time, in early July, Holyoke engaged a process
server to find and serve Underwood in person. Before suit was filed,
Holyoke had tried to locate her, and thought it had in Missouri.
The July 17th deadline passed.

A few days later, two things

happened. The wrong Cynthia Underwood was served in person. And
defense counsel informed Holyoke that the Agency and Underwood
would not waive service. There was some further confusion, because
in early July the Agency's registered agent had been replaced. Holyoke
eventually correctly served both defendants with the amended
complaint and corrected summonses. This was accomplished by midAugust, about a month after the service period expired.
3.

In hindsight, it's clear that Holyoke should have asked for

an extension in early July. Its imperfect service efforts, Underwood's
elusiveness, the pending waiver request, and the looming deadline
would have provided good cause for a short extension. Kurka v. Iowa
County, Iowa, 628 F.3d 953, 956-58 (8th Cir. 2010). But Holyoke didn' t

ask.
Was there excusable neglect in all this?

Considering all the

circumstances, the Court concludes that there was. Pioneer Investment
Services Company v . Brunswick A ssociates Ltd. Partnership, 507 U.S. 380,

395 (1993); Treasurer, Trustees of Drury Industries, Inc. Health Care Plan
& Trust v . Goding, 692 F.3d 888, 893-94 (8th Cir. 2012). Holyoke tried to

complete timely service, but failed repeatedly.
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Unlike in Kurka,

Holyoke was trying. 628 F.3d at 958-59. Its foundational mistake-the
misnomer-was a modest one, which the Rules contemplate fixing
where no one has been misled. FED. R. CIV. P. 15(c)(l)(C). No one was
misled here. There was no bad faith, just fumbling around. And
fumbles of this sort, even if unforced, can be excused. Treasurer, 692
F.3d at 893. The circumstances allow for that here. The Agency knew
that it and its former employee were being sued. They vigorously
preserved and pursued their defenses in a timely fashion. The potential
prejudice to Holyoke of losing its claims to a limitations defense in a refiled suit outweighs the prejudice to the Agency and Underwood of
going forward to the merits now. Chorosevic v. MetLife Choices, 600 F.3d
The new ninety-day service period is

934, 946-47 (8th Cir. 2010).

salutary, but sometimes more time is needed.

And the law favors

decisions on the merits. Sugarbaker v. SSM Health Care, 187 F.3d 853, 856
(8th Cir. 1999). Holyoke's errors in not getting good service before July
17th, or an extension to do so, are excusable.

*

*

*

The Court therefore reopens and extends the time for service until
31 August 2017. Holyoke's motion for belated extension, NQ 23, is
granted as·modified. The Agency and Underwood's second motion to
dismiss, NQ 25, is denied with a carve out. The Agency's charitable
immunity is one of the deep issues in the case. The Court still doesn't
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have enough information to rule on that issue. The Agency may press

this defense in due course.
So Ordered.

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