Joe Hand Promotions, Inc. v. Pearson
Filing
17
ORDER declining to adopt 14 Report and Recommendations; denying 7 Motion to Dismiss; granting 9 Motion to Extend time to perfect service, plaintiffs given until 10/5/15 for service. Signed by Honorable Susan O. Hickey on September 22, 2015. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JOE HAND PROMOTIONS, INC.
v.
PLAINTIFF
CASE No. 4:14-cv-04094
CARMENCHITA PEARSON,
Individually and doing business as
DE QUEEN COUNTRY CLUB & LODGE
DEFENDANT
ORDER
Before the Court is the Report and Recommendation filed January 27, 2015 by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 14). Judge Bryant recommends that Defendant’s Motion to Dismiss (ECF No. 7) be
granted and that Plaintiff’s Motion for Extension of Time (ECF No. 9) be denied. Plaintiff has
filed objections to the Report and Recommendation. (ECF No. 15). After reviewing the record
de novo, the Court declines to adopt Judge Bryant’s Report and Recommendation.
Plaintiff commenced this action against Defendant on July 17, 2014. (ECF No. 1). On
November 6, 2014, Defendant filed the present Motion to Dismiss. In its motion, Defendant
seeks a dismissal of this action pursuant to Federal Rule of Civil Procedure 12(b)(5) for
insufficient service of process. While Plaintiff acknowledges that its initial attempts at service
were unsuccessful, Plaintiff argues that it has shown good cause for its failure to effectuate
service within the 120-day period prescribed by Rule 4(m). For this reason, Plaintiff opposes
Defendant’s Motion to Dismiss and requests that its deadline to complete service be extended.
In the Report and Recommendation, Judge Bryant found that Plaintiff had failed to show
good cause for its failure to serve Defendant within the 120-day period.
Judge Bryant
recommends that Plaintiff’s request for a service extension be denied and that Defendant’s
Motion to Dismiss be granted.
Plaintiff makes three objections to the Report and
Recommendation. First, Plaintiff argues that Judge Bryant failed to consider its argument that
Defendant’s Motion to Dismiss should be denied because the motion does not comply with the
Court’s local rules. Second, Plaintiff maintains that Judge Bryant erred in finding that Plaintiff
had not shown good cause for its failure to serve Defendant within the 120-day service period.
Third, Plaintiff argues that, while Judge Bryant considered whether Plaintiff had shown good
cause for its failure to serve Defendant, Judge Bryant should have gone on to consider whether
an extension of time was warranted under the less stringent “excusable neglect” standard. The
Court will address each of Plaintiff’s objections in turn.
1. The Local Rules
Plaintiff argues that Defendant’s Motion to Dismiss should be denied based solely upon
the fact that the motion was not accompanied by a brief. Local Rule 7.2(a) provides:
All motions except those mentioned in paragraph (d) shall be accompanied
by a brief consisting of a concise statement of relevant facts and applicable
law. Both documents shall be filed with the Clerk, and copies shall be
served on all other parties affected by the motion.
The Court recognizes that Defendant did not submit a brief with its Motion to Dismiss.
However, the Motion adequately set out the relevant facts and applicable law such that Plaintiff
had sufficient notice of the legal arguments. Under these circumstances, the Court will not deny
the motion solely on the ground that Defendant failed to follow a filing technicality of Local
Rule 7.2(a).
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2. Good Cause
Next, Plaintiff argues that Judge Bryant erred in finding that Plaintiff had not shown good
cause for its failure to serve Defendant within the service period. Regarding extensions of time,
Federal Rule of Civil Procedure 4(m) provides as follows:
If a defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
In deciding whether to extend the 120-day period, the Court must first determine whether
good cause exists. Adams v. AlliedSignal General Aviation Avionics, 74 F.3d 882, 887 (8th Cir.
1996). If the Court finds good cause for the delay, the Court must extend time for service, thus
ending the inquiry. Id.
In this case, Plaintiff first attempted service by mail prior to the expiration of the 120-day
service period. Plaintiff acknowledges that this attempt was not in compliance with the service
requirements of Ark. R. Civ. P. 4(d)(8)(A)(i). On November 6, 2014, perhaps in response to
Defendant’s Motion to Dismiss which pointed out the service deficiencies, Plaintiff made a
second attempt at service via process server. This second service attempt was also within the
120-day service period. However, this attempt was unsuccessful because of an apparent change
in Defendant’s address. Plaintiff was informed by its process server that Defendant had moved
from De Queen Arkansas to Eureka Springs, Arkansas. On November 24, 2014—ten days after
the expiration of the service period—Plaintiff filed its Motion for Extension of Time to Complete
Service.
The Court agrees with Judge Bryant that the facts above do not establish good cause for
an extension to the service deadline. Plaintiff carelessly attempted service by mail and left itself
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with little time to correct the error prior to the expiration of the service period. Plaintiff points
out that its second attempt at service was thwarted by a change of address; however, if Plaintiff
had been more diligent in its attempts to serve Defendant, there would have been ample time to
secure a current address for Defendant and attempt service for a third time within the 120-day
service period. For these reasons, the Court finds that Plaintiff has failed to show good cause for
its failure to serve Defendant within 120 days. Accordingly, pursuant to Rule 4(m), the Court is
not required to grant a service extension.
3. Excusable Neglect
Plaintiff’s final objection to the Report and Recommendation is that Judge Bryant did not
go on to consider whether a discretionary service extension is warranted under the less stringent
“excusable neglect” standard. The Court finds that this objection should be sustained.
“If plaintiff fails to show good cause, the court still may extend the time for service
rather than dismiss the case without prejudice.”
Adams v. AlliedSignal General Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996). “To warrant a discretionary extension, the plaintiff
must establish excusable neglect.”
Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir.
2010). In determining whether neglect is excusable, the following factors may be considered:
“(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.” Kurka v.
Iowa Cnty., Iowa, 628 F.3d 953, 959 (8th Cir. 2010).
Upon consideration of these factors, the Court finds that an extension of time is
warranted. First, Defendant had actual notice of the lawsuit prior to the expiration period, and
Defendant has not argued that any prejudice would result from an extension. Second, the length
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of the delay was not substantial. Plaintiff’s Motion for Extension of Time was filed only 10 days
after the expiration of the service period. Third, while the reason for the delay was largely due to
Plaintiff’s inattention to the rules for service by mail, Plaintiff’s second attempt at service was
thwarted by an apparent change in Defendant’s address—a factor outside of Plaintiff’s control.1
Plaintiff did, at the very least, attempt to complete service within the 120-day period on two
different occasions. Fourth, the Court finds no signs of bad faith on the part of Plaintiff, nor has
Defendant argued that Plaintiff’s actions were taken in bad faith.
For the reasons stated above, the Court finds that an extension to the service period is
warranted. Accordingly, Defendant’s Motion to Dismiss (ECF No. 7) should be and hereby is
DENIED. Plaintiff’s Motion for Extension of Time (ECF No. 9) should be and hereby is
GRANTED. If Plaintiff has not already completed service upon Defendant, it must do so on or
before October 5, 2015.
IT IS SO ORDERED, this 22nd day of September, 2015.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
1
It appears that Plaintiff’s process server received the process on October 10, 2014 but made no attempt
to serve Defendant until November 6, 2014. (ECF No. 8, p. 5). While Plaintiff should have supervised
the actions of its process server more closely, the Court recognizes that partial responsibility for the delay
in service may rest with the process server.
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