Pullins v. Bi Lo Holdings, LLC et al
Filing
27
ORDER granting Defendants' 18 Motion to Dismiss. Signed by Chief Judge Lisa G. Wood on 12/12/2016. (ca)
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BRIDGETT PULLINS,
Plaintiff,
CV 215-162
V.
BI-LO HOLDINGS, LLC; DELHAIZE
AMERICA, LLC; SAMSON MERGER
SUB, LLC; SOUTHEASTERN
GROCERS, LLC d/b/a HARVEY'S
SUPERMARKET; and RETAINED
SUBSIDIARY ONE,LLC
Defendant.
ORDER
This
Merger
matter
Sub,
comes
LLC
before
Court
and
{''Samson")
the
on
Retained
Defendants
Samson
Subsidiary
One's
("Retained" collectively "Defendants") Motion to Dismiss (Dkt.
No. 18).
decision.
The
motion
is fully briefed
and is
now
ripe for
For the reasons stated below, the motion is GRANTED.
FACTUAL BACKGROUND
This case arises from personal injuries allegedly sustained
by
Plaintiff
Bridgett
Pullins
("Plaintiff")
when she fell at
Harvey's Supermarket due to a "loud noise" caused by an employee
or agent of the Defendants.
Dkt. No. 1 H 6.
She claims that
Defendants failed to keep their premises safe and should have
posted warning signs about the loud noise.
fllO.
Plaintiff
now seeks to recover damages for her medical expenses as well as
her
pain
and
November 12,
suffering.
2015.
Plaintiff
filed
See generally id.
her
Complaint
on
On December 23, 2015,
Plaintiff amended her Complaint to add Retained as a Defendant.
On
March
24,
2016,
alleging
that
neither
served.
Dkt.
No.
Defendants
Complaint.
No.
the
24.
18.
Samson
filed
nor
Samson
the
Retained
has
yet
to
motion
had
at
been
answer
issue,
properly
Plaintiff's
Retained filed its Answer on April 27, 2016.
Plaintiff
was
notified
^^sole-survivors-in-interest"
that Samson and Retained
to
Harvey's
Supermarket
Dkt.
were
on
December 14, 2015 via an email with an attached Memorandum of
Mergers.
Dkt. No. 20 p. 1.
All other Defendants in this matter
have either been properly served or have waived service.
DISCUSSION
The
should be
Court considers whether
or
not Plaintiff's Complaint
dismissed for failure to properly serve Defendants.
Plaintiff bears the responsibility of serving the Defendant with
copies of the complaint and a summons in accordance with Federal
Rule of Civil
Procedure
4 (m)
{''Rule
4(m)").
Lepone-Dempsey v.
Carroll Cty. Comm'rs., 476 F.3d 1277, 1280-81 (11th Cir. 2007).
Rule 4(m) provides, in part, as follows:
If a defendant is not served within 90 days after the
complaint is filed, the court—on motion or
after notice to the plaintiff—must dismiss
without prejudice against that defendant or
service be made within a specified time.
on its own
the action
order that
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).^
Rule 4(m) thus requires that a plaintiff
properly affect service on the defendant within 90 days after
filing a complaint.
Lepone-Dempsey, 476 F.3d at 1281 (citing
Fed. R. Civ. P. 4(m)).
Where a plaintiff has filed a complaint but has not yet
served the same upon the defendant, the plaintiff's decision to
amend the complaint does not extend the timeframe in which to
affect service under the rule.
See Leonard v. Stuart-James Co.,
742 F. Supp. 653, 662 (N.D. Ga. 1990).
must
still
be
served
original complaint.
within
90
days
The amended complaint
of
the
filing
of
the
See id. at 660, 662 (seirvice of the amended
complaint 157 days after the original complaint's filing and
thus
was
insufficient).
In
those
circumstances,
the
amended
complaint must be served in the same manner as an original
complaint, rather than in the manner applicable to siibsequent
pleadings.
In
See Leonard, 742 F. Supp. at 662.
this
case,
it
is
undisputed
that
Plaintiff
did
not
properly serve Defendants within the 90-day service period under
Rule 4(m).
Dkt. No. 20 p. 1.
Plaintiff concedes this fact and
instead seeks to extend the time of service as to Defendants.
^
A recent amendment to this rule shortened the 120-day period for
service to only 90 days.
note.
See Fed. R. Civ. P. 4 advisory committee's
Rule
served
failure
4(m)
affords
outside
to
the
serve
two
90-day
^'safety
window
Defendants
hatches"
and
within
for
therefore
that
necessarily fatal to her cause of action.
complaints
Plaintiff's
timeframe
is
not
See Lau v. Klinger,
46 F. Supp. 2d 1377, 1380 (S.D. Ga. 1999).
Rather, Plaintiff
may avoid a dismissal of this action by demonstrating good cause
for failing to meet the service deadline, in which case the
Court
would
appropriate
be
obligated
period.
See
to
extend
that
Lepone-Dempsey,
deadline
476
F.3d
for
at
an
1281
(citing Fed. R. Civ. P. 4(m)).
Alternatively, Plaintiff may avoid dismissal by convincing
the
Court
to
exercise
its
discretion
to
extend
service even in the absence of good cause.
the
time
for
See id. (citing
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir.
2005)); Lau, 46 F. Supp. 2d at 1380 (citing Madison v. BP Oil
Co., 928 F. Supp. 1132, 1135 (S.D. Ala. 1996)).
first
resolve
discretionary
the
issue
of
good
considerations.
cause
See,
The Court must
before
e.g.,
turning
Petrucelli
to
v.
Bohrinqer & Ratzinger, 46 F.3d 1298, 1306 (3d Cir. 1995); Lau,
46 F. Supp. 2d at 1381.
A. Good Cause
^^Good cause exists
as
reliance
on
faulty
^only when some outside factor[,] such
advice
negligence, prevented service.'"
rather
than
inadvertence
or
Lepone-Dempsey, 476 F.3d at
1281 {alteration in original) (quoting Prisco v. Frank, 929 F.2d
603, 604 (11th Cir. 1991)).
Courts have likened good cause to
the
neglect,"
see
a
of
concept
6(b)(1)(B),
of
which
^^excusable
requires
showing
Fed.
good
R.
Civ.
faith
and
P.
a
reasonable basis for noncompliance with the time set forth in
the
rule.
See,
e.g.,
Adams
v.
AlliedSignal
Gen.
Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996) (citing Lujano v.
Omaha Pub. Power PiSt., 30 F.3d 1032, 1035 (8th Cir. 1994), and
Pellegrin & Levine, Chartered v. Antoine, 961 F.2d 277, 282-83
(B.C. Cir. 1992)); Lau, 46 F. Supp. 2d at 1380 (citing Madison,
928 F. Supp. at 1137).
While certain factors outside of a
plaintiff's control satisfy this standard, neither inadvertence
of counsel nor unfamiliarity with the governing rules is one of
them.
See, e.g., Petrucelli, 46 F.3d at 1307 (citing Lovelace
V. Acme Mkts., Inc., 820 F.2d 81, 84 (3d Cir. 1987)); Hamilton
V. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992) (citing Wei v.
Hawaii,
763
F.2d
370,
372
(9th
Cir.
1985)).
Nor
does
the
tolling of the statute of limitations excuse noncompliance with
Rule 4(m).
Leonard, 742 F. Supp. at 662 n.8.
Plaintiff fails to demonstrate good cause for her untimely
service on Defendants.
Plaintiff offers virtually no reason for
failing to serve Defendants beyond that the ownership of the
supermarket
situation."
where
the
incident
Dkt. No. 20.
took
place
is
a
^^confusing
While it does appear that ownership
of the supermarket changed hands in 2014, Plaintiff was aware of
this fact as early as December 14, 2015.
Furthermore,
Defendants
Dkt.
No.
Plaintiff
filed
18.
was alerted
their
As
Motion
such,
it
to
has
Dkt. No. 20-1 p. 1-2.
to the
Dismiss
been
service
on
over
issue
March
six
when
24,
2016.
months
since
Plaintiff was formally notified she had not served Defendants,
yet
she
still
Therefore, the
has
not
accomplished
service
of
process.
Court cannot find good cause for her dilatory
service here.
B. Discretionary Considerations
Rule 4(m) affords the district court discretion to enlarge
the 90-day period for service of process even if Plaintiff fails
to establish good cause.
Horenkamp, 402 F.3d at 1132 (citing
Henderson v. United States, 517 U.S. 654 (1996)).
A permissive
extension of time for service may be warranted, 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."
Civ.
P.
4(m)
advisory
Id. at 1132-33 (quoting Fed. R.
committee's
note
to
1993
amendment).
Other relevant considerations may include whether the defendant
had
notice
of
the
suit
despite
the
plaintiff's
failure
to
perfect timely service, and whether the defendant has received
proper service since the close of the 90-day window.
1133.
See id. at
The Court declines to grant a time extension in this case.
The statute of limitations period for a personal injury action
in Georgia is two years.
OCGA § 9-3-33.
Since the incident in
this case occurred on December 6, 2013, a dismissal here would
amount to a dismissal with prejudice because a re-filed action
against Defendants would be outside the statute of limitations.
However, ^'the running of the statute of limitations does not
require that a district court extend the time for service of
process," as the court has discretion in making this decision.
Horenkamp, 402 F.3d at 1132.
Here,
Plaintiff's
excuse
is
no
excuse
at
all.
The
Defendants remain unserved over a year after the filing of the
original action and six months after filing their Motion to
Dismiss for lack of service.
lack
of
ownership
action
of
the
is
the
store
Plaintiff's only excuse for her
amount
where
of
confusion
the
ownership question may have very
incident
regarding
the
occurred.
The
well been confusing.
Yet,
Plaintiff was no longer confused on December 14, 2015.
This was
the
of
Mergers,
of
Harvey's
date
indicating
Supermarket.
ago.
Plaintiff
that
received
Defendants
the
were
Memorandum
the
Dkt. No. 20-1 pp. 1-2.
Defendants remain xinseirved.
owners
This was almost a year
At this point, the Court
would be granting what would amount to over a 180 day extension,
more than double the amount originally given to Plaintiff under
Rule 4(m).
The Court declines to grant an extension in this
case, and Defendants' Motion to Dismiss is hereby granted.
CONCLUSION
Based on the foregoing. Defendants' Motion to Dismiss (Dkt.
No. 18) is GRANTED.
SO ORDERED, this 12th day of December, 2016.
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
D72A
ev. 8/82)
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