Martin et al v. Brentwood Industries
ORDER granting 6 Motion to Dismiss Case. Plaintiffs' claims against Brentwood Industries, Inc. are dismissed without prejudice. Signed by Honorable Susan O. Hickey on October 26, 2016. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TONYA L. MARTIN; MARCUS REEDY; and
CASE NO. 4:16-CV-4041
Before the Court is Defendant’s Motion to Dismiss. ECF No. 6. Defendant Brentwood
Industries, Inc. seeks dismissal of Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(2),
12(b)(4), and 12(b)(5) for insufficient service of process. Plaintiffs have responded. ECF No. 10,
11. This matter is ripe for consideration.
Plaintiffs filed their Complaint against Defendant Brentwood Industries, Inc. 1 on April
28, 2016. ECF No. 1. Pursuant to the requirements of Fed. R. Civ. P. 4(m), Plaintiffs were
required to serve the Summons and Complaint on the Defendant by July 27, 2016. On June 16,
2016, the Clerk of Court issued a text only entry stating:
No answer or other responsive pleading has been filed. The file does not reflect a
proof of service of the complaint upon the defendant. Federal Rule of Civil
Procedure 4(l) requires proof of service to be filed with the court. If service is not
perfected on a defendant within 90 days after filing the complaint, a show cause
order will issue and the complaint against that defendant is subject to dismissal
pursuant to Federal Rule of Civil Procedure 4(m).
Plaintiffs then attempted service of process by certified mail on August 12, 2016. ECF No. 10-5.
That parcel, addressed to Brentwood Industries c/o Sharon Powell, Registered Agent, 306 North
Industrial Drive, Hope, AR 71801, was returned to Plaintiffs because no such address existed
Defendant was incorrectly named in the Complaint and Summons as “Brentwood Industries.” ECF No. 6.
and the United States Postal Service (“USPS”) was unable to forward the parcel. Id. The parcel
was returned to Plaintiffs on or about August 24, 2016. Id.
In Plaintiffs’ Response to Defendant’s Motion to Dismiss, Plaintiffs included a printout
of Brentwood Industries, Inc.’s corporate filing information as it appeared on the Arkansas
Secretary of State’s website on September 16, 2016. ECF No. 10-1. That filing listed Sharon
Powell as the registered agent of Brentwood Industries, Inc., but noted the agent’s address as
“306 N. Industrial Park Drive, Hope, AR 71801.” Id. (emphasis added).
On August 30, 2016, Plaintiffs successfully delivered a copy of the Summons and
Complaint to Defendant Brentwood Industries, Inc. via FedEx. ECF No. 10-3. The FedEx parcel
was addressed to Brentwood Industries, Sharon Powell, Registered Agent, 118 Brentwood Dr.,
Hope, AR, US 71801.
On September 16, 2016, Defendant Brentwood Industries, Inc. moved to dismiss the
pending action for insufficient service of process because it was served more than 90 days after
the Complaint was filed and was incorrectly named in both the Complaint and Summons as
“Brentwood Industries.” ECF No. 6.
Pursuant to Fed. R. Civ. P. 4(m), “[i]f a defendant is not served within 90 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.” Rule 4(m), further, requires that a
court extend the time for service for an “appropriate period” in situations where “the plaintiff
shows good cause” for failing to serve the defendant within 90 days of filing the complaint. “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 a 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 v. Iowa
Cnty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010); 4B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1137 (4th ed.).
If the plaintiff fails to show good cause, the court may extend the time for service rather
than dismiss the case without prejudice. Kurka, 628 F.3d at 957. The plaintiff must establish
excusable neglect for such a discretionary extension. Id. 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. Kurka, 628 F.3d at 959.
Here, Defendant Brentwood Industries, Inc. was not served within 90 days after the
Complaint was filed, as required by Fed. R. Civ. P. 4(m). If Plaintiffs show good cause for
noncompliance with Rule 4(m) this Court is required to extend the time for service. The four
factors discussed in Kurka provide guidance as to whether Plaintiffs have shown good cause.
Plaintiffs make no allegation that they failed to comply with Rule 4(m) due to the action of a
third person. As to the issue of whether Defendant Brentwood Industries, Inc. has evaded service
of process or engaged in misleading conduct, Plaintiffs have failed to provide evidence of such
evasive action aside from stating that Defendant “appears” to be evading service “by having the
wrong information on file with the Secretary of State.” ECF No. 10. Such failure to update
corporate filings, absent other evidence, does not in itself show an attempt to evade service or
In regards to the level of diligence exercised by Plaintiffs in attempting to complete
service of process, they have not provided any evidence that service was even attempted until
August 12, 2016, more than two weeks after the 90-day period had expired. Further, Plaintiffs
offer no explanation as to why service was not attempted before August 12, 2016. Although
Plaintiffs correctly show that Defendant failed to update the corporate filing with the Arkansas
Secretary of State, Plaintiffs have not demonstrated that they relied on that incorrect information
until after the expiration of the 90-day period. It is reasonable for Plaintiffs to rely on
information filed with the Secretary of State, but in the present case Plaintiffs have not shown
such detrimental reliance prior to August 12, 2016. Finally, Plaintiffs successfully served
Defendant on August 30, 2016, thus showing that despite the incorrect information obtained
from the Secretary of State, Plaintiffs were able to find Defendant’s correct address fairly
quickly and presumably could have done so prior to July 27, 2016. 2 All of these facts show that
Plaintiffs have not acted diligently in attempting to serve Defendant. The final factor to consider
in determining whether Plaintiffs have shown good cause for noncompliance with Rule 4(m) is
whether the party is proceeding pro se or in forma pauperis, neither of which applies in the
Upon weighing these factors, it appears that Plaintiffs have not shown good cause for
failing to meet the service requirements of Fed. R. Civ. P. 4(m). Plaintiffs’ actions show a lack of
Plaintiffs included three “Dismissal and Notice of Rights” letters from the EEOC with the Complaint. Each of
those letters included an address for Defendant, namely, “118 Brentwood Road, Hope, AR 71801.” ECF No. 1.
Although this address is incorrect in that it says “Road” where it should say “Drive,” it shows that at the time the
Complaint was filed, Plaintiffs had notice that Defendant’s address with the Secretary of State may be incorrect.
good faith effort to serve Defendant Brentwood Industries, Inc. and they have provided no
“reasonable basis for noncompliance with the rules.”
Even though Plaintiffs have not shown good cause, the Court may use discretion to
extend the time for service if Plaintiffs can establish excusable neglect. The first factor the Court
may consider is the possibility of prejudice to Defendant if the time for service is extended.
Defendant has not alleged that it will be prejudiced by the delay. The next factor the Court may
consider is the length of the delay and the impact on the proceedings. In the present case
Plaintiffs waited more than two weeks after the expiration of the 90-day period before even
attempting to complete service. This two-week delay came after Plaintiffs were reminded on
June 16, 2016, by the Clerk of Court that Proof of Service had not been filed with the Court.
Defendant was not successfully served until August 30, 2016. Considering this one-month delay
and the fact that it has stalled the litigation, the Court finds that this factor weighs against
Plaintiffs. The Court may also consider the reason for the delay and whether it was within
Plaintiffs’ power to avoid the delay. As discussed above, Plaintiffs made no attempt to serve
Defendant until after 90 days had passed, and then claimed they were unable to complete service
because of a defective corporate filing with the Secretary of State. However, although it appears
that Defendant failed to keep the Secretary of State updated regarding the proper address for
service of process, Plaintiffs did not rely on that incorrect information until after the period for
service had expired.
Finally, the Court may consider whether Plaintiffs acted in good faith. Again, Plaintiffs
made no attempt to serve Defendant within the required 90 days. The Court finds that Plaintiffs
failed to act in good faith. Taking all of these factors into account, the Court concludes that
Plaintiffs have not established excusable neglect. Therefore, this Court will not extend the time
For the reasons explained above, Defendant Brentwood Industries, Inc.’s Motion to
Dismiss Plaintiffs’ Complaint is GRANTED. Plaintiffs’ claims against Brentwood Industries,
Inc. are hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 26th day of October, 2016.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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