Buckland et al v. Stanley et al
Filing
8
MEMORANDUM OPINION & ORDER: (1) 3 Motion to Dismiss is GRANTED. (2) Pla's 6 Motion for Extension of Time to Serve Jeremy Stanley, Aritta Becksted and Loryn Shepherd is DENIED. (3) Plas' claims against Dfts are DISMISSED WITHOUT PREJUDICE pursuant to Fed R Civ P 4(m) and Fed Rule Civ P 12(b)(5). Signed by Judge Joseph M. Hood on 9/29/2014.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
LORETTA BUCKLAND,
et al.,
Plaintiffs,
v.
LINDA STANLEY, et al.,
Defendants.
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)
)
)
)
)
)
)
)
)
Civil Case No. 13-cv-191JMH
MEMORANDUM OPINION & ORDER
***
This
matter
Stanley’s
Motion
is
to
before
the
Dismiss
[DE
Court
3],
on
with
Defendant
respect
to
Linda
which
Plaintiffs have filed a Response [DE 5], and Plaintiffs’ Motion
for
an
Extension
of
Time
to
Serve
Jeremy
Stanley,
Aritta
Becksted, and Loryn Shepherd [DE 6].
Fed. R. Civ. P. 4(m) provides that, “[i]f 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.”
Good
cause requires “excusable neglect,” Bradford v Bracken Cnty.,
767 F. Supp. 2d 740, 753-54 (E.D. Ky. 2011) (citing Stewart v.
Tenn. Valley Auth., 238 F.3d 424 (6th Cir. 2000)).
The excusable nature of the neglect turns on “the danger of
prejudice to the [non-moving] party, the length of delay and its
impact on judicial proceedings, the reason for the delay . . .
and
whether
the
movant
acted
in
good
faith.”
Id.
(quoting
Pioneer Inv. Servs. Co. v. Brunswick Assoc. Lt. P’ship, 507 U.S.
380 (1993)); Habib v. Gen. Motors Corp., 15 F.3d 72, 74 (6th
Cir. 1994) (explaining that “[t]o demonstrate good cause, other
courts have held that plaintiff may also show he/she made a
reasonable and diligent effort to effect service).
“Reasonable
and diligent effort” requires some showing of good faith and a
reasonable basis for noncompliance.
One must have legitimate
reasons for untimely service, and this Court must take them into
consideration in evaluating noncompliance.
Moncrief v Stone,
961 F.2d 595, 597 (6th Cir. 1992); Habib v. Gen. Motors Corp.,
15 F.3d 72, 74 (6th Cir. 1994) (finding error where district
court failed to consider plaintiff’s medical problems and pro se
status in its good cause determination).
The
Court
considers,
first,
Defendant
Linda
Stanley’s
motion to dismiss the claims against her.
It is undisputed that
she
complaint
was
served
with
the
summons
and
after
expiration of the 120 day period set forth in Rule 4.
the
Plaintiff
argues that the failure was due to excusable neglect and made in
good
faith
as
Plaintiffs
had
a
difficult
time
finding
her
correct address and finding a process server willing to effect
2
service because counsel believed that she might be armed and
dangerous.
Defendant Stanley points out, by means of an affidavit,
that she has lived at the same address, 4271 Vince Road in
Nicholasville,
Kentucky,
for
twenty-eight
years
and
that,
in
fact, Plaintiff Sonya Shepherd mailed correspondence to her at
that address in 2011.
mistake
about
incorrectly
her
Plaintiffs, in response, argue that their
address
reported
in
a
was
in
good
criminal
faith
citation
as
that
it
was
Defendant
Stanley received in relationship to the events which are the
subject of this lawsuit1 and that, while that fact was discovered
by
Plaintiffs
another
Stanley.
before
incorrect
filing
suit,
address,
920
research
Lane
then
Circle,
turned
for
up
Defendant
It was only upon the return of an unclaimed attempt at
service via certified mail at that address that Plaintiffs – or
at
least
their
counsel
–
discovered
that
the
address
was
incorrect and then sought out someone to effect personal service
of the summons and complaint.
That took some time, Plaintiffs
explain, because counsel felt obliged to tell potential process
servers that Linda Stanley might be armed and potentially a
danger to anyone attempting to effect personal service.
1
Of
Plaintiffs contend that they were injured Defendants ambushed,
e.g., “threaten[ed]” and “physically attack[ed]”, them in the
parking lot of the Hobby Lobby store located in Nicholasville,
Kentucky. [See Complaint, DE 1, passim.]
3
course,
Plaintiffs’
counsel
offers
no
explanation
beyond
his
conclusory statement for why he believed Linda Stanley might be
armed and potentially a danger to anyone attempting to effect
personal service.
Ultimately, having waited so long to attempt
service, Plaintiffs should not have been surprised that they
were unable to serve her within the time frame set forth by the
statute, only effecting it on the 126th day after commencement
of this suit.
Plaintiffs
have
been
unable
Defendants by certified mail.
to
serve
any
of
the
other
Plaintiffs claim that they have
demonstrated good cause for their inability to serve the other
defendants and seek, two months after the expiration of the 120
day period for service of process, an extension of time to serve
them.
First, the house located at the address at which service
was first attempted is now for sale, a fact which they did not
discover until the attempt at service by certified mail was
returned unclaimed and a process server was located who would
attempt to serve these defendants.
Plaintiffs equate the fact
the remaining defendants are no longer resident at the address
where
they
service
used
extension
would
Committee
of
to
serve
time,
Note,
live
to
evading
service.
as
an
adequate
basis
see
there
Fed.
is
R.
Civ.
simply
no
P.
While
for
4(m),
evidence
evading
granting
1993
an
Advisory
that
these
defendants left that address in an effort to evade service.
4
Occam’s razor suggests that they have simply moved.
Plaintiffs’
counsel does not indicate that he has undertaken any further
efforts
to
discover
counsel
adequately
these
defendants
explained
why
he
whereabouts.
believed
Nor
the
has
remaining
Defendants might be armed and pose a danger to anyone attempting
to serve process such that Plaintiffs had difficulty hiring a
service agent willing to locate and serve the defendants.
with
Linda
Stanley,
counsel’s
statements
in
this
regard
As
are
conclusory at best since he does not identify the source of that
information or the grounds for that belief.
Ultimately, the
Court is not persuaded that counsel’s inadvertent failure or
halfhearted
efforts
to
serve
these
defendants
within
the
statutory period constituted “good cause” or that he or his
clients necessarily acted in good faith in their efforts to
timely
serve
these
individuals.2
See
Friedman
v.
Estate
of
Presser, 929 F.2d 1151, 1157 (6th Cir.1991) (citations omitted).
2
In light of the analysis above, the Court need not
necessarily consider whether the defendants would be prejudiced
by
granting
Plaintiffs
additional
time
to
serve
them.
Nonetheless, the Court does note that, in the case of Defendant
Stanley, it is highly unlikely she would be prejudiced in
litigation by the additional six days that it took to serve her.
As to whether the remaining defendants would be prejudiced by
granting Plaintiffs additional time to serve these defendants,
even considering that they only first requested leave two months
after the expiration of the 120 day period for service, the
answer is clear: probably not. At the time the present motions
were filed, the case had barely begun and there could be little
impact on judicial proceedings.
5
In
the
absence
of
good
cause,
the
Court
must
still
determine if it should exercise its discretion to further expand
the time for service. Plaintiffs argue that an exercise of that
discretion in their favor is appropriate due to the prejudice
that will befall them and which militates against dismissal of
their
claims
for
failure
to
effect
timely
service.
Specifically, they argue that such a dismissal would serve as a
de facto dismissal with prejudice because there is a one year
statute
of
limitations
for
suits
for
personal
injury,
the
gravamen of this action, and because the action accrued on June
21, 2012, and the suit was commenced on June 21,2013. The fact
that
dismissal
without
prejudice
may
doom
Plaintiffs’
claims
does not, however, require this Court to extend the time for
service
of
Institute,
process.
2007
WL
See
Grose
2781434,
*3
v.
Mansfield
(N.D.
Ohio
Correctional
Sept.
24,
2007)
(citing Nehls v. Hillsdale College, 2004 U.S. Dist. LEXIS 8588,
*17
(W.D.
Mich.
Feb.
20,
2004);
Panaras
v.
Indus. Corp., 94 F.3d 338, 341 (7th Cir. 1996)).
Liquid
Carbonic
Courts in this
district have both granted additional time and dismissed actions
where
a
claim
would
be
barred
by
the
relevant
statute
of
limitations if dismissed because the case was commenced on the
last possible day.
See Turner v. Kentucky Transp. Cabinet,
Civil Action No. 3:10-cv-39-DCR, 2010 WL 5014516, *3-4
(E.D.Ky.
Dec. 3, 2010) (Reeves, Dist. J.) (granting short extension of
6
time
to
effectuate
resolution
of
service
Plaintiff’s
because
claims
dismissal
which
were
would
prevent
required
to
be
brought within 90 days of receipt of Right to Sue Letter, a very
short period; Defendants had actual notice of the suit; proper
address for service was used in attempts; and defendant was not
prejudiced, even though Plaintiff waited 116 days – “until the
last moment” –
to attempt to perfect service and did not move
for time extension); Delong v. Arms, 251 F.R.D. 253, 255 (E.D.
Ky.
2008)
(VanTatenhove,
Dist.
J.)
(dismissing
Plaintiff’s
claims where first attempt to name Doe defendants was almost two
years after filing initial complaint and only basis for failing
to serve defendants was “mere oversight”); Burnett v. Martin,
Civil Action No. 6:06-cv-482-DCR, 2007 WL 2156541, *2-3 (E.D.
Ky. July 24, 2007) (Reeves, Dist. J.) (extending time to serve
by thirty days where Plaintiffs' excessive force claims would be
barred by the applicable statute of limitations if action was
dismissed
received
without
telephone
prejudice,
messages
where
from
late-served
process
server
defendant
prior
to
expiration of 120 day period but did not return calls, where
good faith effort was made to serve defendant through constable,
and where defendant would not be prejudiced by brief extension
of time).
Rather, it is one of a non-exhaustive list of factors
that
Court
this
considers:
(1)
whether
[Plaintiffs’]
claims
would be barred by the statute of limitations if dismissed; (2)
7
whether the defendant[s] had notice so that [they] would not be
unfairly surprised by the lawsuit; and (3) whether an extension
of time would serve the overall policy of resolving disputes.
Turner, 2010 WL 5014516 at *3 (citations omitted); see also John
W. Stone Oil Distributor, LLC v. PBI Bank, Inc., Civil Action
No. 3:09-cv-862-H, 2010 WL 3221800, *2 (W.D.Ky. Aug. 12, 2010)
(exercising discretion to extend time to serve where good cause
for failure to serve was not shown and in absence of prejudice
to
late-served
defendant
because
plaintiff
could
simply
file
again the next day upon dismissal of suit without prejudice,
which would have resulted in unnecessary waste of resources).
On the facts before it in the instant matter, the Court is
unmoved by the potential loss of a cause of action.
Given the
fact that Plaintiffs waited until the last day of the one-year
limitations period to file their suit, then showed a woeful lack
of
diligence
in
attempting
to
locate
defendants
or
effect
service or to explain their failure to serve within the time
period, and then waited two months past the 120 day period for
service to file a motion for an extension of time to serve all
but one of the defendants, the Court sees no reason to reward
their
laxity
with
an
extension
of
time.
In
reaching
its
decision, the Court is mindful that dismissal for failure to
complete
service
may
well
prevent
resolution
of
Plaintiffs’
claims against Defendants on the merits due to expiration of the
8
statute of limitations. The Court is also mindful that there is
no evidence which suggests that, absent service, any of the
Defendants would have had actual notice of the lawsuit and,
thus, would be unfairly surprised by the lawsuit after the 120
period expired.
Finally, on the facts before it, the Court is
not persuaded that an extension of time would serve the overall
policy of resolving disputes on their merits.
Statutes
of
limitations
are
a
known
hazard
when
one
undertakes to commence a suit; they serve to extinguish claims
and exist as part of the framework to provide citizens with a
means by which to not only govern their litigation behavior but
also to evaluate their relative risk of loss with the passage of
time.
time
True, serving a defendant or requesting an extension of
to
serve
defendants
six
days
or
two
months
after
the
expiration of the 120-day period for service is not the same as
waiting two years, see Delong, 251 F.R.D. at 255, and this Court
might grant an extension of time to serve a defendant where
someone
has
waited
circumstances,
see
“until
Turner,
the
last
moment”
under
WL
5014516
at
2010
different
*3,
but
it
declines to do so in this instance.
Accordingly, IT IS ORDERED:
(1)
that Defendant Linda Stanley’s Motion to Dismiss [DE
3] is GRANTED;
9
(2)
that Plaintiffs’ Motion for an Extension of Time to
Serve Jeremy Stanley, Aritta Becksted, and Loryn Shepherd [DE 6]
is DENIED;
(3)
that
Plaintiffs’
claims
against
Defendants
are
DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m) and
Fed. R. Civ. P. 12(b)(5).
This the 29th day of September, 2014.
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