Carter v. AT&T Corp. et al

Filing 10

ORDER finding as moot 5 Motion to dismiss; granting 6 Motion for extension of time to serve complaint. Signed by Magistrate Judge Monte C. Richardson on 11/13/2012. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
VICTORIA CARTER,
Plaintiff,
vs.

Case No. 3:12-cv-610-J-99TJC-MCR

AT&T CORP., et al.,
Defendants.
_____________________________________/

ORDER
THIS CAUSE is before the Court on Plaintiff’‘s Motion for Extension of Time Nun
Pro Tunc to Serve Complaint (Doc. 6) filed October 15, 2012. On October 22, 2012,
Defendant filed its Response in Opposition to Plaintiff’‘s Motion (Doc. 8). Accordingly,
this matter is now ripe for judicial review.
I.

BACKGROUND
On May 22, 2012, Plaintiff filed a Complaint for relief under the Employee

Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. (“ERISA”) against
Defendants, AT&T Corp. and AT&T Umbrella Plan No. 1. (Doc. 1). Pursuant to Rule
4(c)(1) and 4(m), Fed. R. Civ. P., Plaintiff had 120 days, or until September 19, 2012, to
serve process on Defendants.
On September 21, 2012, two days after the service deadline, Defendant AT&T
Corp. was served.1 On October 12, 2012, Defendant AT&T Corp. filed a Motion to
1

Defendant AT&T Umbrella Plan No. 1 has not been served as of the date of the

(continued...)
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Dismiss Plaintiff’s Complaint for failure to timely effect service. (Doc. 5). On October
15, 2012, Plaintiff filed the instant Motion for Extension of Time Nunc Pro Tunc to serve
the Complaint. (Doc. 6). In response, Defendant contends that Plaintiff’s Motion fails to
demonstrate the good cause required by Rule 4(m), Fed. R. Civ. P., and should be
denied. (Doc. 8).
II.

ANALYSIS
Pursuant to Federal Rule of Civil Procedure 4(m):
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.

Fed. R. Civ. P. 4(m). If a plaintiff is unable to effect service within the required 120 day
time period after the complaint is filed, the plaintiff has the burden of showing good
cause for the failure to timely serve the defendant. See Moore v. Bayer Corp., 2012
WL 3323689 at *1 (11th Cir. August 14, 2012) (district court did not abuse its discretion
by denying an extension of time to serve corporate defendant because plaintiffs did not
establish good cause for their failure to perfect service for more than a year after the
action was filed). Good cause requires identification of an outside factor preventing
service, reliance on faulty advice, or evasion of service. Id. However, “[e]ven in the
absence of good cause, a district court has the discretion to extend the time for service

1

(...continued)

instant Motion.
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of process under Rule 4(m).” Horenkamp v. Van Winkle & Co. Horenkamp, 402 F.3d
1129, 1133 (11th Cir. 2005); see also Henderson v. United States, 517 U.S. 654, 663,
116 S.Ct. 1638, 1643, 134 L.Ed.2d 880 (1996) (recognizing courts have been accorded
the discretion to enlarge the 120-day period even in the absence of showing good
cause).
According to the instant Motion, Plaintiff has a related case against Defendant
pending before the Florida Division of Administrative Hearings. Plaintiff’s counsel
asserts that he did not immediately serve Defendant because he was waiting to
determine whether there was any basis to settle both claims. However, Plaintiff’s
counsel did email Defendant’s counsel with a copy of the Complaint filed in this action.
Although the aforementioned email does not constitute proper service, service
was conducted within 2 days of the deadline and the email certainly put Defendant on
notice of the instant action. Thus, the Court can see no prejudice caused by Plaintiff’s
2 day delay in service. It seems that Defendant AT&T Umbrella Plan No. has not yet
been served due to problems with effectuating service in the City of Sugar Land, Fort
Bend County, Texas, where AT&T Umbrella Plan No. 1 is located.2
In light of the foregoing, the Court is inclined to grant Plaintiff’‘s Motion for
Extension of Time Nun Pro Tunc to Serve Complaint (Doc. 6). However, Plaintiff’s
counsel is admonished that he is to proceed with due haste to ensure sufficient, proper

2

Specifically, Plaintiff did not find out until after the deadline had expired that all
service of process in Fort Bend County could only be performed by a local constable. In addition,
service was further delayed because the Fort Bend County constable would only accept delivery
of the Summons and Complaint and the $65.00 service fee by regular U.S. Mail.
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service of process is, or has been, made upon all named Defendants by the deadline
set below.
Accordingly, after due consideration, it is
ORDERED:
1.

Plaintiff’‘s Motion for Extension of Time Nun Pro Tunc to Serve Complaint

(Doc. 6) is GRANTED. Plaintiff shall have through Friday, November 23, 2012 to
effectuate proper service of process upon all defendants.
2.

Defendant’s Motion to Dismiss (Doc. 5) is DEEMED MOOT, in light of the

above ruling.
DONE AND ORDERED in Chambers in Jacksonville, Florida this 13th day of
November, 2012.

Copies to:
Counsel of Record

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