Walkup et al v. Air & Liquid Systems Corporation et al

Filing 129

REPORT AND RECOMMENDATIONS - re #59 MOTION to Dismiss, #37 MOTION to Dismiss, #36 MOTION to Dismiss, #115 MOTION to Dismiss, #41 MOTION to Dismiss, #35 MOTION to Dismiss. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 10/15/2013. Signed by Judge Sherry R. Fallon on 9/26/13. (rwc) Modified on 9/27/2013 (lih).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

LARRY WALKUP and
BETTY WALKUP,
Plaintiffs,

v.
AIR & LIQUID SYSTEMS CORP.,
AKA BUFFALO PUMPS, INC., et aI.,
Defendants.

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Civil Action No. 12-1635-SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION

Presently before the court in this diversity action are six Motions to Dismiss for
Insufficiency of Service of Process (the "Motions to Dismiss" or "Motions") filed individually by
the following Defendants:
CBS Corp. (see DJ. 35);

Union Carbide Corp. ("Union Carbide") (see D.L 36);

Dana Companies, LLC ("Dana") (see D.L 37);

Whitney Automotive Group ("Whitney") (see D.L 41);

Crane Co. ("Crane") (see DJ. 59), (together, the "Swartzl Defendants"); and

Western Auto Supply Co. ("Western Auto Supply") (see D.L 115).

The Plaintiffs, Larry and Betty Walkup ("Plaintiffs"), oppose the Motions of the Swartz
Defendants (D.L 52, 53, 54, 57, 74), and assert no position on the Motion of Western Auto
Supply? For the reasons which follow, I recommend that the court DENY the Swartz Defendants'
Motions to Dismiss and GRANT Western Auto Supply's Motion to Dismiss.
"Swartz" refers to the law firm of Swartz Campbell LLC, which represents all but one of the
moving Defendants, namely, Western Auto Supply.
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Defendant Western Auto Supply filed its Motion to Dismiss on July 10,2013. (D.!. 115) The
deadline for Plaintiffs to respond to the Motion was July 29,2013, pursuant to Local Rule 7.1.2(b).
Plaintiffs did not respond to Western Auto Supply's Motion.
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II.

BACKGROUND

The Plaintiffs filed this personal injury action on June 14,2012, in the Superior Court of

Delaware. (D.l. 35, Ex. A) On August 14,2012, Plaintiffs filed their First Amended Complaint.
(D.l. 1, Ex. A) The Complaint asserts various causes of action arising out of Larry Walkup's
alleged exposure to asbestos throughout his employment and through personal construction work.
(ld, Ex. A" 47-49)
Under the Delaware Superior Court's Standing Order No.1, Plaintiffs had 60 days, or until
August 13, 2012, to complete service of process for all Defendants. See Standing Order No. 1 f16,

In re: Asbestos Litig., No. 77C-ASB-2 (Del. Super. Ct. Apr. 29, 2011)? On August 21, 2012,
Plaintiffs filed a motion for enlargement of time in which to serve Defendants. 4 (DJ. 35, Ex. C)
The Superior Court granted Plaintiffs' motion on September 11, 2012 and gave Plaintiffs an
additional 60 days, or until November 12, 2012, to complete service of process. (D.!. 52, Ex. 5)
Dana was served on August 14,2012. (D.L 54, Ex. 6)5 CBS Corp. was served on October
31,2012. (DJ. 53, Ex. 6) Union Carbide, Whitney, and Crane were served on November 1,2012.
(DJ. 52, Ex. 6; D.l. 57, Ex. 6; D.l. 74, Ex. 6)
The action was removed to this court on December 3, 2012. (D.l. 1) Defendants CBS
Corp., Union Carbide, and Dana each filed a Motion to Dismiss on February 6, 2013. (D.I. 35, 36,
A copy of Standing Order No. 1 is attached as an exhibit to each of the moving Defendants'
opening briefs. (See, e.g., D.L 35, Ex. D)
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Plaintiffs filed a second, identical motion for enlargement of time on October 15,2012. (DJ. 35,
Ex. C) Although the record contains no documentary evidence to show whether the Superior Court
granted this motion, a review ofthe Delaware Superior Court's publicly-available docket indicates
that the motion was granted on October 31,2012. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d
256,260 (3d Cir. 2006) ("In evaluating a motion to dismiss, we may consider ... any ... [']items
subject to judicial notice, matters of public record, orders, [and] items appearing in the record of
the case.'" (citation omitted) (alteration in original)).
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Exhibit 6 submitted with DJ. 54 is erroneously labeled as Exhibit 4.
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37) Whitney filed its Motion to Dismiss on February 8, 20l3. (D.!. 41) Crane filed its Motion to
Dismiss on March 6, 20l3. (DJ. 59)
On May 28,2013, the court held a Rule 16 scheduling conference. During the conference,
Defendant Western Auto Supply indicated that it had not been served with the Complaint and
reserved the right to assert service of process defenses. (D.1. 97 at 1 n.1) The court subsequently
entered an Order on May 30, 2013, which imposed a June 28, 2013 deadline for Plaintiffs to
effectuate service of process on any Defendant that had not been served. (ld.) On July 10,2013,
with service of process still incomplete, Western Auto Supply filed its Motion to Dismiss. (DJ.
115) Plaintiffs did not respond to Western Auto Supply's Motion.
III.

LEGAL STANDARD

A defendant may file a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) when a
plaintiff fails to properly serve him or her with the summons and complaint. See Fed. R. Civ. P.
12(b)(5). A plaintiff "is responsible for having the summons and complaint served within the time
allowed by Rule 4(m)." Fed. R. Civ. P. 4(c)(1). Rule 4(m) imposes a 120-day time limit for
perfection of service following the filing of a complaint. Fed. R. Civ. P. 4(m). If service is not
completed within that time, the action is subject to dismissal without prejudice. Id. See also MCI
Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995); Krieger v. Russell, 267

F.R.D. 453,454 (D. Del. 2010).
Courts conduct a two-part inquiry in deciding whether to extend a plaintiffs deadline to
serve the defendant pursuant to Rule 4(m). See Thompson v. Target Stores, 501 F. Supp. 2d 601,
604 (D. Del. 2007). First, a court must determine whether there is good cause for the failure of
proper service; if so, the court must extend the time tor service and the inquiry is complete.
Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). Second, if good cause is

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not found, the court may, at its discretion, either grant an extension for service or dismiss the case
without prejudice. ld Courts generally consider three factors in determining whether good cause
exists: "(1) whether the plaintiff has reasonably attempted to effect service; (2) whether the
defendant is prejudiced by the absence of timely service; and (3) whether the plaintiff moved for
an extension of time for effecting service." Thompson, 501 F. Supp. 2d at 604 (citing United States
v. Nuttall, 122 F.R.D. 163, 166-67 (D. Del. 1988». When evaluating good cause, courts should
focus primarily on the plaintiffs reasons for failure to obtain good service within the time frame
set forth by Rule 4(m). Id. See also MCITelecomms., 71 F.3d at 1097.
Conversely, when an action, such as the present case, is commenced in a state court and
subsequently removed to federal court where service ofprocess is contested, the federal court must
look to the law ofthe state in which the action was commenced to determine the validity of service
of process. Yoder v. Yamaha Int'l Corp., 331 F. Supp. 1084, 1086 (E.D. Pa. 1971) (citing Lambert
Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S. 377 (1922); Partin v. Michaels Art Bronze
Co., 202 F.2d 541 (3d Cir. 1953». See also 14 James Wm. Moore et aI., Moore's Federal Practice
§ 81.04 (3d ed. 2010) ("After removal of an action to federal court, state procedural rules will
continue to govern with respect to any issues that arose prior to removal. Thus, state law controls
such procedural issues as questions concerning ... the form, sufficiency, filing, and service of
pleadings. ").

IV.

DISCUSSION
A.

The Swartz Defendants' Motions to Dismiss 6

The court should deny the Swartz Defendants' Motions because Plaintiffs properly served
the individual Swartz Defendants within the time provided by the Delaware Superior Court in its
The Swartz Defendants' Motions to Dismiss are virtually identical and, therefore, the analysis
set forth in this section applies to their Motions collectively.

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September 11, 2012 Order. The Superior Court exercised its discretion by extending the time for
completion of service of process through November 11, 2012.
Furthermore, the Swartz Defendants offer no argument that merits the dismissal of
Plaintiffs' claims. The Swartz Defendants contend that Plaintiffs' untimeliness in completing
service warrants dismissal. (See 0.1. 35 ~ 6; 0.1. 36 ~ 6; 0.1. 37 ~ 6; 0.1. 41

~

6; 0.1. 59 ~ 8) Despite

the arguably belated efforts by Plaintiffs to perfect service ofprocess, the Delaware Superior Court
granted their request for an extension of time. When a case pending in a state court is removed to a
federal district court, any orders entered by the state court "remain in full force and effect until
dissolved or modified by the district court." 28 U.S.C. § 1450. See also Granny Goose Foods v.
Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 437 (1974). The Superior Court docket

confirms that the Swartz Defendants were served within the extended time frame of November 11,
2012, as set by an order of the Superior Court. The Swartz Defendants have not persuaded this
court that it should interfere with the Superior Court's decision to extend the time for service of
process.
When a case is removed from Delaware State court to the federal District Court of
Delaware, the case will proceed against those defendants properly served prior to removal. See
Wright v. Xerox Corp., 882 F. Supp. 399,403 (D.N.J. 1995) (holding that the federal District Court

ofNew Jersey "may exercise jurisdiction over any person who would be subject to the jurisdiction
of the courts of the State of New Jersey"). See also 28 U.S.C. § 1448; Fed. R. Civ. P. 4(e); North
Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d Cir.), cert. denied, 498 U.S.

847 (1990). Consequently, the court should deny the Swartz Defendants' Motions to Dismiss.

B.

Western Auto Supply's Motion to Dismiss

The court should grant Western Auto Supply's Motion to Dismiss because Plaintiffs have

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not served Western Auto Supply with the Complaint, despite having more than one year to do so.
Plaintiffs failed to comply with this court's Order imposing a June 28, 2013 deadline to complete
service of process for all Defendants. (D.l. 97) Specifically, Plaintiffs have made no effort to
perfect service in this forum as required by the Federal Rules of Civil Procedure. Moreover,
Plaintiffs failed to respond to Western Auto Supply's Motion. Thus, the Motion should be granted.

V.

CONCLUSION
For the foregoing reasons, I recommend that the court deny the Swartz Defendants'

Motions to Dismiss and grant Western Auto Supply's Motion to Dismiss.
This Report and Recommendation is filed pursuant to 28 U.S.c. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed.
R. Civ. P. 72(b )(2). The objections and responses to the objections are limited to ten (l0) pages
each. The failure of a party to object to legal conclusions may result in the loss of the right to de
novo review in the District Court. See Sincavage v. Barnhart, 171 F. Appx. 924, 925 n.l (3d Cir.
2006); Henderson v. Carlson, 812 F.2d 874,878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order in Non-Pro Se Matters for Objections
Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is available on the
court's website, www.ded.uscourts.gov.

Dated: September d..~2013

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