Joe Hand Promotions, Inc. v. Kasting et al

Filing 7

MEMORANDUM AND ORDER. On or before 3/22/13, plaintiff shall file proof of service of summons and complaint on defendants. If plaintiff fails to do so, the Court will dismiss this case without further notice. Signed by Chief Judge Kathryn H. Vratil on 3/8/2013. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOE HAND PROMOTIONS, INC.,

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Plaintiff,
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v.
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TIMOTHY KASTING, et al.,
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Defendants.
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________________________________________________)

CIVIL ACTION
No. 12-2629-KHV

MEMORANDUM AND ORDER
On September 24, 2012, plaintiff filed this suit against Timothy Kasting and the Red Brick
Grill, alleging that defendants engaged in unauthorized reception and exhibition of cable and satellite
broadcasts in violation of 47 U.S.C. §§ 553 and 605. Plaintiff also alleges a state common law claim
of conversion. On January 31, 2013, Magistrate Judge David J. Waxse ordered plaintiff to show
cause on or before February 15, 2013 why the case should not be dismissed for lack of prosecution
under Fed. R. Civ. P. 41(b). See Notice And Order To Show Cause (Doc. #5). This matter is before
the Court on plaintiff’s Declaration In Response To Show Cause Order (Doc. #6) filed February 11,
2013.
Rule 4(m), Fed. R. Civ. P., requires that plaintiff serve the summons and complaint within
120 days after filing of the complaint. Rule 4(m) directs the Court to dismiss the action without
prejudice if the deadline is not met or, if plaintiff shows good cause for the failure, order that
plaintiff effect service within a specified time.
Here, plaintiff concedes that it did not effectuate service within the 120-day period set out
in Rule 4(m). Plaintiff’s response outlines unsuccessful attempts to serve defendants and also states
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that due to an office error in calendaring, plaintiff failed to file a motion to extend the time for
service. Plaintiff asks the Court for an extension of time to March 11, 2013 to effectuate service.
Where plaintiff seeks an extension of time to serve defendant, the preliminary inquiry under
Rule 4(m) is whether plaintiff has shown good cause for the failure to timely effect service.
Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). If good cause is shown, plaintiff is
entitled to a mandatory extension of time. If plaintiff does not show good cause, the Court must
consider whether a permissive extension of time is warranted or whether the case should be
dismissed without prejudice. Id.
In this case, the 120-day time period for plaintiff to obtain service expired January 22, 2013.
On a timely motion, the Court could have granted a permissive extension of time even if plaintiff
had not shown good cause for failure to make timely service. See Hunsinger v. Gateway Mgmt.
Assocs., 169 F.R.D. 152, 155 (D. Kan. 1996). Although inadvertence does not constitute good
cause, the Court will allow plaintiff a brief extension of time to serve the summons and complaint.
See McCormick v. Medicalodges, Inc., No. 05-2429, 2006 WL 1360403, at *1 (D. Kan. May 17,
2006) (even where good cause not shown, courts prefer to decide cases on merits rather than on
technicalities) (citing Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
IT IS THEREFORE ORDERED that on or before March 22, 2013, plaintiff shall file
proof of service of summons and complaint on defendants. If plaintiff fails to do so, the Court
will dismiss this case without further notice.
Dated this 8th day of March, 2013, at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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