Bell et al v. Mine Safety Appliances Company et al
Filing
31
ORDER denying 16 Motion to Dismiss. Signed by Honorable Susan O. Hickey on January 28, 2015. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
VICKIE BELL, PHILLIP B. BELL, JR.
and JONATHAN BELL
VS.
PLAINTIFFS
CASE NO. 1:13-CV-01075
MINE SAFETY APPLIANCES
COMPANY, et al.
DEFENDANTS
ORDER
Before the Court is Separate Defendant Mine Safety Appliance Company’s Motion to
Dismiss Plaintiffs’ Original Complaint. (ECF No. 16). Pursuant to Federal Rules of Civil
Procedure 12(b)(4), 12(b)(5), and 4(m), Mine Safety Appliance Company seeks dismissal of the
above-styled and numbered case for insufficient service of process. Plaintiffs have responded.
(ECF No. 19). This matter is ripe for consideration.
BACKGROUND
Plaintiffs filed their complaint against Mine Safety Appliance Company (“MSA”) and
other defendants on October 17, 2013. At that time, Plaintiffs searched the Lexis Nexis public
records database for MSA’s address for service of process. Lexis Nexis indicated that the
address for The Corporation Company, which is MSA’s registered agent for service of process,
was 425 W. Capitol Ave., Suite 1700, Little Rock, AR 72201. The same address for The
Corporation Company was listed on various websites.
Plaintiffs served The Corporation Company on January 9, 2014, with MSA named in the
summons. The service was returned as “not deliverable as addressed” on January 20, 2014.
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Plaintiffs were perplexed because the service information appeared correct, but they ultimately
surmised that the agent rejected service because “Mine Safety Appliances” was named in the
summons and not “The Corporation Company.”
Service was resubmitted on April 24, 2014, and the summons was re-labeled to “The
Corporation Company.” This service was also rejected, and was returned with an “insufficient
address” note. Plaintiffs then realized that the address for The Corporation Company might be
incorrect, and they performed a second search on Lexis Nexis. A different address appeared for
The Corporation Company. 1
Upon discovering the new address, Plaintiffs contacted the
Arkansas Secretary of State to inquire about when the address change occurred, but the Secretary
of State indicated that it was impossible to determine that information.
Plaintiffs successfully served MSA on May 29, 2014. On June 17, 2014, MSA moved to
dismiss the action against it for insufficient service of process because it was served more than
120 days after the Complaint was filed.
DISCUSSION
Pursuant to Fed. R. Civ. P. 4(m), if a defendant is not served within 120 days after the
complaint is filed, the court must dismiss the action without prejudice against that defendant or
order that service must be made within a specified time. If the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period. Fed. R. Civ. P.
4(m). If the plaintiff fails to show good cause, the court may extend the time for service rather
than dismiss the case without prejudice. Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir.
2010).
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To this day, many websites provide 425 W. Capitol Ave., Suite 1700, Little Rock, AR 72201 as the address for
The Corporation Company.
2
“A showing of good cause requires at least ‘excusable neglect’ – good faith and some
reasonable basis for noncompliance with the rules.”
Adams v. AlliedSignal Gen. Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996). Good cause is likely to be found when the plaintiff’s
failure to complete service in timely fashion is (1) a result of the conduct of a third person,
typically the process server; (2) the defendant has evaded service of the process or engaged in
misleading conduct; (3) the plaintiff has acted diligently in trying to effect service or there are
understandable mitigating circumstances; or (4) the plaintiff is proceeding pro se or in forma
pauperis. Kurka, 628 F.3d at 957; 4B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1137 (4th ed.).
discretionary extension.
Id.
The plaintiff must establish excusable neglect for a
In determining whether neglect is excusable, the Court may
consider the following factors: (1) the possibility of prejudice to the defendant; (2) the length of
the delay and the potential impact on judicial proceedings; (3) the reason for the delay, including
whether the delay was within the party's reasonable control; and (4) whether the party acted in
good faith. Id. at 959.
Here, MSA was not served within 120 days after the Complaint was filed, but Plaintiffs
have shown good cause for the failure. It was reasonable for Plaintiffs to assume that the address
listed for The Corporation Company on the Lexis Nexis database and elsewhere was correct.
Plaintiffs acted in good faith and their failure to complete service in a timely fashion was largely
due to the conduct of The Corporation Company in changing its address. MSA has not alleged
that it will be prejudiced by the delay. Therefore, the Court finds that Plaintiffs have shown
good cause for the failure to serve MSA within 120 days after filing the Complaint.
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CONCLUSION
For the reasons explained above, Defendant MSA’s Motion to Dismiss Plaintiffs’
Original Complaint (ECF No. 16) is DENIED.
IT IS SO ORDERED, this 28th day of January, 2015.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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