Dumas v. ABB Group Inc. et al
MEMORANDUM OPINION. Signed by Judge Sherry R. Fallon on 1/9/2014. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ABB GROUP, INC., et al.,
Civil Action No. 13-229-SLR-SRF
Presently before the court in this personal injury diversity action is a Motion to Vacate the
Magistrate Judge's November 25, 2013 Order (the "Motion" or "Motion to Vacate"), filed by
Defendant ITT Corporation ("ITT"). (D.I. 282) Arthur Dumas (the "Plaintiff') opposes ITT's
motion. (D.I. 289) For the reasons which follow, ITT's Motion to Vacate is DENIED.
The Plaintiff initiated this action on by filing a complaint in the Superior Court of Delaware
on December 14,2012. (D.I. 1, Ex. A) The complaint asserts various causes of action arising out of
Plaintiff's alleged exposure to asbestos throughout his employment. (!d.) ITT was not named as a
Defendant in that complaint. (!d.)
Under the Delaware Superior Court's Standing Order No. 1, Plaintiffs had 60 days, or until
February 12, 2013, to complete service of process for all Defendants. See Standing Order No. 1 ~
6, In re: Asbestos Litig., No. 77C-ASB-2 (Del. Super. Ct. Apr. 29, 2011).
On January 23, 2013, Plaintiff filed an affidavit in the Superior Court stating that he sent
via registered mail a copy of the complaint to Foster Engineering Company. (D.I. 283, Ex. B)
Plaintiff attached to the affidavit a copy of a return receipt showing that the complaint had been
F.R.D. 453,454 (D. Del. 2010).
When entertaining a motion to extend time for service, the court conducts a two-part
inquiry. 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 for service and the inquiry is complete. Petrucelli v. Bohringer & Ratzinger, 46
F.3d 1298, 1305 (3d Cir. 1995). Second, if good cause is not found, the court may, in its discretion,
either grant an extension for service or dismiss the case without prejudice. !d. See also MCI
Telecomms., 71 F.3d at 1098.
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). !d. See also MCI Telecomms., 71 F.3d at 1097; Walkup v. Air & Liquid Sys. Corp.,
2013 WL 5396674, at *2 (D. Del. Sept. 26, 2013), report and recommendation adopted, 2013 WL
5786517 (D. Del. Oct. 24, 2013).
ITT offers two arguments in support of its Motion to Vacate. First, ITT contends that there
was "no good cause pled or found to justify [the] extension under [Rule 4(m)]." (D.I. 283 at 6)
Second, ITT asserts that "an additional discretionary extension of the service deadline was not
justified under [Rule 4(m)] and ITT will otherwise be greatly prejudiced." (/d.)
The court agrees with ITT that there was no good cause for an extension of time to
complete service of process. Nevertheless, the court properly exercised its discretion in granting
the Plaintiff's request. Furthermore, under the facts of this case, ITT will not suffer great prejudice
if its Motion to Vacate is denied.
A. Good Cause
In deciding whether to extend a plaintiff's deadline to serve the defendant pursuant to Rule
4(m), the court must first determine whether good cause exists for an extension of time. Petrucelli,
46 F.3d at 1305. When evaluating good cause, courts should focus primarily on the plaintiff's
reasons for failure to timely perfect service. See Thompson, 501 F. Supp. 2d at 604; Walkup, 2013
WL 5396674, at *2.
In the present case, good cause has not been demonstrated to justify an extension of time
for Plaintiff to complete service of process. Plaintiff's only explanation for his failure to obtain
good service is that he "mistakenly took no steps to serve" ITT, despite having 260 days to do so.
(D.I. 276 ,-r 1) The Third Circuit recognized long ago that "inadvertence of counsel does not
constitute good cause." Braxton v. United States, 817 F.2d 238,242 (3d Cir. 1987). Consequently,
there was no good cause for the extension of time to complete service. 3
B. Discretionary Extension of Time and Prejudice to ITT
Notwithstanding the absence of good cause, '"the court may in its discretion decide
whether to dismiss the case without prejudice or extend time for service."' MCI Telecomms., 71
F.3d at 1098 (quoting Petrucelli, 46 F.3d at 1305). Although the Third Circuit has not provided an
There are 260 days between December 12, 2012, the date this action was filed, and August 28,
2013, the date on which Plaintiff's second extended deadline for completion of service expired.
In determining that there was no good cause, the court is not persuaded by Plaintiff's argument,
which urges that there is good cause for an extension "if necessary to correct oversights in
compliance with the requirements of multiple service[.]" (D.I. 289 at 2, 3 (quoting Fed. R. Civ. P.
4(m) advisory committee's note (1993))) At the time ITT was joined, service was incomplete for
only two defendants, including ITT. Thus, there was no backlog of unserved defendants that
caused Plaintiffto "mistakenly [take] no steps to serve" ITT. (D.I. 276 ,-r 1)
exhaustive list of factors district courts should consider when deciding how to exercise discretion,
it has found that the Advisory Committee note to the 1993 Amendments to Rule 4 provide some
guidance. See Petrucelli, 46 F.3d at 1305-06. "'[R]elief may be justified, for example, if the
applicable statute of limitations would bar the refiled action, or if the defendant is evading service
or conceals a defect in attempted service."' 4 !d. (quoting Fed. R. Civ. P. 4(m) advisory
committee's note (1993)). On the other hand, the Third Circuit "express[ed] no opinion as to what
factors, in addition to those listed in the Advisory Committee note, a district court may consider
when deciding whether to extend time for service or dismiss a case." !d. at 1306 n.8.
In the present case, the court properly exercised its discretion to extend the time for service
of process, despite Plaintiffs inattention to completing service. See MCI Telecomms., 71 F .3d at
1098 (explaining that "the district court ha[ s] the discretion to allow this action to proceed even in
the absence of 'good cause'"). The court finds that inclusion of ITT in this action will not cause
ITT to suffer undue prejudice. Although the discovery deadlines set in the Scheduling Order
recently expired, a limited extension of these deadlines to enable ITT to conduct discovery is an
adequate remedy. Additionally, as a result of unrelated discovery issues, the court vacated the
dispositive motion deadline of January 10, 2014 and will set a new date. Consequently, ITT and
other parties have not lost an opportunity for filing dispositive motions. Finally, the denial ofiTT's
Motion will not disturb any pretrial deadlines or trial date, as none are presently set.
For the foregoing reasons, ITT's Motion to Vacate is DENIED. An appropriate order will
Other factors may include whether service was required to be made on multiple defendants, and
whether the plaintiff is appearing pro se. Sene v. MBNA Am., Inc., 2005 WL 23 04181, at *3 n.l (D.
Del. Sept. 20, 2005) (citing Fed. R. Civ. P. 4(m) advisory committee's note (1993)).
This Memorandum Opinion is filed pursuant to 28 U.S.C. § 636(b)(l)(A), Fed. R. Civ. P.
72(a), 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 Memorandum Opinion. Fed. R. Civ. P.
72(a). The objections and responses to the objections are limited to ten (1 0) pages each.
The parties are directed to the court's Standing Order in Non-ProSe Matters for Objections
Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is available on the
Dated: January 9, 2014
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