Stapleton et al v. Vicente et al

Filing 124

MEMORANDUM OPINION & ORDER: 1) Dft PM Transport of Florida LLC's 95 Motion to Dismiss Second Amended Complaint is GRANTED; 2) The Stapletons' claims against Dft PM Transport are DISMISSED WITHOUT PREJUDICE; and 3) This dismissal does not apply to the other Dfts in this matter. Signed by Judge Joseph M. Hood on 03/31/2021. (MDC) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JEFFREY M. STAPLETON, et al.,
Plaintiffs,
V.
SEVILLA VICENTE, et al.,
Defendants.
**

**

)
)
)
)
)
)
)
)
)
**

Civil Case No.
5:18-cv-504-JMH-MAS
MEMORANDUM OPINION
AND ORDER
**

**

This matter comes before the Court on Defendant PM Transport
of Florida LLC’s (“PM Transport”) Motion to Dismiss Second Amended
Complaint [DE 95] requesting that the Court dismiss the claims
against PM Transport without prejudice. Having considered this
matter

fully,

and

being

otherwise

sufficiently

advised,

PM

Transport’s Motion to Dismiss [DE 95] will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 5, 2018, Plaintiff Jeffrey M. Stapleton was driving
a tractor trailer on I-75 in Madison County, Kentucky when he and
Defendant Sevilla Vicente, who was operating a separate tractor
trailer (“the truck”), collided with each other. Following the
accident, Jeffrey Stapleton and his wife, Beatrice Stapleton,
filed the present action against Vicente, the driver, Shekhyna
Truck, Inc., the owner of the truck,

Blue Ocean Logistics Corp.

(“Blue Ocean”), the carrier of the cargo, Costa Farms, the owner

of the cargo, PM Transport, the broker that hired Blue Ocean to
transport the cargo, and DMG Truck Repair Corporation, a company
that allegedly repaired the truck prior to the accident. [DE 1-1;
DE 25; DE 70].
The

matter

currently

before

the

Court

concerns

the

Stapletons’ claims against PM Transport, which was added to this
case

as

a

Complaint

defendant
[DE

70].

in
The

the

August

Second

26,

Amended

2019,

Second

Complaint

Amended

alleges

PM

Transport is joint and severally liable for Vicente’s alleged
negligence and negligent for not ensuring the truck and Vicente
were in compliance with state statutes and Federal Motor Carrier
Regulations despite having a duty to do so. [DE 70, at 5-6; 9-10].
The Stapletons claim PM Transport is liable for loss of consortium
on

behalf

of

Beatrice

Stapleton,

damages

related

to

Jeffrey

Stapleton’s medical expenses and lost wages, and punitive damages.
[DE 70, at 12-13]. On April 8, 2020, PM Transport filed the present
Motion to Dismiss [DE 95], which shall be discussed further herein.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a
complaint may be attacked for failure “to state a claim upon which
relief can be granted.” To survive a Rule 12(b)(6) motion to
dismiss, a complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
2

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A motion
to dismiss is properly granted if it is beyond doubt that no set
of facts would entitle the petitioner to relief on his claims.”
Computer Leasco, Inc. v. NTP, Inc., 194 F. App’x 328, 333 (6th
Cir. 2006). When considering a Rule 12(b)(6) motion to dismiss,
the court will presume that all the factual allegations in the
complaint are true and draw all reasonable inferences in favor of
the nonmoving party. Total Benefits Planning Agency v. Anthem Blue
Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing
Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir.
1983)). “The court need not, however, accept unwarranted factual
inferences.” Id. (citing Morgan v. Church’s Fried Chicken, 829
F.2d 10, 12 (6th Cir. 1987)).
III. DISCUSSION
Pursuant to Rule 12(b)(6), PM Transport moves to dismiss the
Stapletons’ claims against PM Transport for the following reasons:
(1) the Stapletons’ claims against PM Transport are barred by the
applicable statute of limitations, and the claims do not relate
back; and (2) the Stapletons failed to meet the 90-day service
deadline found in Federal Rule of Civil Procedure 4(m). [DE 95, at
3-6]. The Court will consider each of PM Transport’s arguments in
turn, starting with its argument regarding Rule 4(m).
3

Pursuant to Rule 4(m), “[i]f a defendant is not served within
90 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.” This “‘gives the Court discretion
to dismiss the action or allow Plaintiffs additional time’” to
perfect service. Raniero v. UPS Ground Freight, Inc., No. 16-230DLB-CJS, 2017 WL 5075245, at *1 (E.D. Ky. Nov. 3, 2017) (quoting
Bradford v. Bracken Cty., 767 F. Supp. 2d 740, 753 (2011)).
However, this discretion is eliminated if the plaintiff can meet
its burden of showing “good cause” for the delay in filing. Id.
(citing Habib v. General Motors Corp., 15 F.3d 72, 73 (6th Cir.
1994)). Specifically, Rule 4(m) states, “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).
Here, the Stapletons concede that they failed to perfect
service on PM Transport in the required 90-day period. [DE 96, at
3-4]. PM Transport asserts that the summons was filed after 177
days and served after 206 days of the Stapletons filing the Second
Amended Complaint [DE 70], which added PM Transport as a defendant.
[DE 95, at 5]. Therefore, unless the Stapletons have satisfied
their burden of showing good cause for the delay, the Court has

4

discretion to dismiss this case or allow the delay in perfecting
service.
The Stapletons have not satisfied their burden of showing
good cause for the delay in perfecting service on PM Transport.
While “good cause” is not defined by 4(m), “the Sixth Circuit has
required ‘at least excusable neglect’” to meet the good cause
standard. Bradford, 767 F. Supp. 2d at 754 (citing Stewart v. Tenn.
Valley Auth., No. 99-5723, 2000 WL 1785749, at *1 (6th Cir. Nov.
21, 2000)). Neglect is defined by the Sixth Circuit as when “the
failure to do something occurred because of a simple, faultless
omission to act, or because of a party's carelessness.” Turner v.
City of Taylor, 412 F.3d 629, 650 (6th Cir. 2005) (citation
omitted). Whether neglect is considered excusable is an equitable
decision that accounts for the “circumstances surrounding the
party's omission” in light of several factors. Id. These factors
include “(1) the danger of prejudice to the [non-moving party],
(2) the length of delay and its impact on judicial proceedings,
(3) the reason for the delay, including whether it was within the
reasonable control of the movant and (4) whether the movant acted
in good faith.” Bradford, 767 F. Supp. 2d at 754 (citing Turner,
412 F.3d at 650). Further, “[t]he excusable neglect standard has
consistently been held to be strict, and can be met only in
extraordinary cases.” Turner, 412 F.3d at 650.
5

“‘[S]imple inadvertence or mistake of counsel or ignorance of
the rules usually does not suffice’” to meet this strict, good
cause standard under Rule 4(m). Moncrief v. Stone, 961 F.2d 595,
597 (6th Cir. 1992) (quoting Winters v. Teledyne Movible Offshore,
Inc., 776 F.2d 1304, 1305 (5th Cir. 1985)). In DeLong v. Arms, the
court explicitly held that “mere oversight” by counsel was not
sufficient to constitute good cause. 251 F.R.D. 253, 255 (E.D. Ky.
2008). The Sixth Circuit recognizes that a “counsel's inadvertent
failure . . . to serve a defendant within the statutory period
does not constitute good cause.” Friedman v. Estate of Presser,
929 F.2d 1151, 1157 (6th Cir. 1991) (citations omitted).
In the present case, the Stapletons did not serve PM Transport
on time because the Stapletons “mistakenly believed service had
already been issued concurrently with the entering of the Order to
Amend

adding

Stapletons

PM

Transport

state,

“Upon

as

a

party.”

discovering

this

[DE

96,

at

mistake,

4].

The

Plaintiffs

issued a summons and effected service.” Id. The Stapletons further
added,

“Plaintiffs

argue

the

inadvertent

oversight

caused

no

prejudice to PM Transport and, considering that counsel for Costa
Farms is the same counsel filing the Motion to Dismiss on behalf
of PM Transport, Plaintiffs would argue that PM Transport was on
notice.” Id. (citing Delong, 251 F.R.D. at 255). The Stapletons
failed to comply with the Rule 4(m) service deadline due to an
6

admitted mistake or oversight, and their mistake or oversight does
not rise to the level of good cause. Therefore, the Court will
find no good cause is established and may use its discretion to
dismiss the Stapletons’ claims against PM Transport under Rule
4(m) without prejudice for failure to effect service.
However, this Court has previously outlined several factors
to assist in deciding whether dismissal is appropriate, so the
Court will consider those factors before deciding whether to
dismiss the claims against PM Transport. These factors also point
toward dismissal and include:
(1) whether a significant extension of time was
required; (2) whether an extension of time would
prejudice the defendant other than the inherent
‘prejudice’ in having to defend the suit; (3) whether
the defendant had actual notice of the lawsuit; (4)
whether
a
dismissal
without
prejudice
would
substantially prejudice the plaintiff . . . and (5)
whether the plaintiff had made any good faith efforts at
effecting proper service of process.
Hatton v. Nationwide Mutual Ins. Co., No. 5:19-cv-020-JMH, 2019 WL
3219149, at *4 (E.D. Ky. July 17, 2019).
While the first factor could be considered moot since service
has now been perfected, if an extension had been given, it would
have been a significant extension of time. This favors dismissal.
Instead of perfecting service within the 90 days as required by
Rule 4(m), the Stapletons perfected service 206 days after adding
PM Transport as a party. [DE 95, at 5]. In Belhasen v. Hollon, the
7

court found dismissal appropriate where the plaintiff perfected
service 180 days after filing the complaint. 17-279-DLB, 2018 WL
2347067, at *3 (E.D. Ky. May 23, 2018); see also Raniero, 2017 WL
5075245, at *1 (finding dismissal appropriate where plaintiff
perfected service 254 days after filing the complaint). Therefore,
the

Stapletons

perfecting

service

206

days

after

filing

the

relevant Second Amended Complaint [DE 70] weighs in favor of
dismissal.
Second, if the Court fails to dismiss this case, PM Transport
would

be

prejudiced

to

an

extent

greater

than

the

inherent

prejudice of having to continue the suit. In Hatton, where the
plaintiff missed the 4(m) deadline and would be unable to refile
due to the running of the statute of limitations, the court
explained, “[T]he determination on dismissal versus permitting
late filing may determine whether [defendant] must defend this
action at all. This case is not one where dismissal without
prejudice will simply allow the [plaintiffs] to refile the action
against [defendant].” 2019 WL 3219149, at *4. Under this reasoning,
the Hatton Court held that the defendant would be prejudiced if
the court did not dismiss the action and found that this weighed
in favor of dismissal. Id.
Likewise, allowing late filing in the present case would
prejudice PM Transport by requiring it to defend against claims
8

that would likely otherwise be barred from being refiled by the
statute of limitations.1 Therefore, the second factor also weighs
in favor of dismissal.
Third, even though PM Transport may have had actual notice of
the lawsuit through its counsel, this is not enough to prevent
dismissal. In Turner, the Sixth Circuit reviewed the district
court’s dismissal of plaintiff’s complaint for missing the Rule
4(m) service deadline. 412 F.3d at 650. While the Sixth Circuit
recognized that defendant’s attorney had knowledge of the suit
prior to the service deadline, the Sixth Circuit still held that
the

lower

court

did

not

abuse

its

discretion

in

dismissing

plaintiff’s complaint for failure to meet the Rule 4(m) service
deadline. Id. It reasoned that “[i]f the magistrate judge was
compelled to [allow late service] in these circumstances, then it
is unclear how the 120 day service rule ever could be enforced.”
Id.

Furthermore,

when

the

plaintiff

in

Raniero

argued

that

dismissal for failing to meet the 4(m) deadline was inappropriate
since the “Defendant . . . ha[d] not been prejudiced by the delay
because he was aware of the action despite not having been served,”
the Raniero Court held, “Plaintiff's arguments are unpersuasive
and unsupported by established precedent.” 2017 WL 5075245, at *2.

Though the applicable statute of limitations period is contested,
even the longest period argued of two years has now lapsed.  
1

9

Similarly,

even

if

the

Stapletons

are

correct

that

PM

Transport’s counsel knew of the suit against PM Transport due to
counsel also representing Defendant Costa Farms, the decisions in
Raniero and Turner implore the Court to dismiss the Stapletons’
claims against PM Transport despite PM Transport having knowledge
of the suit. Therefore, the Court is still compelled to dismiss
the claims against PM Transport despite its counsel allegedly
having knowledge of the claims against PM Transport.
Fourth, the Court should consider whether the Stapletons will
be prejudiced by dismissal. While the Stapletons being unable to
refile after dismissal due to the running of the statute of
limitations

is

prejudicial

to

the

Stapletons,

courts

have

repeatedly reasoned that “merely being time-barred from refiling
an action is not, on its own, necessarily a compelling reason to
extend

the

time

to

execute

service”

and

have

held

that

a

plaintiff’s claim should be, nevertheless, dismissed for failure
to perfect service under Rule 4(m). See Bradford, 767 F. Supp. 2d
at 757. For example, in Friedman, the Sixth Circuit held, “Despite
the

severity

of

such

a

result,

dismissal

is

nevertheless

warranted.” 929 F.2d at 1158. Moreover, when faced with a plaintiff
who missed the Rule 4(m) service deadline due to oversight, the
Court in Arms likewise held that “the claims against the . . .
Defendants are dismissed” even though plaintiff would be barred
10

from refiling by the statute of limitations. 251 F.R.D. at 255. As
stated

by

the

Raniero

Court,

the

fact

that

the

statute

of

limitation has expired “is insufficient to warrant exercise of the
Court's discretion” to extend the Rule 4(m) service deadline. 2017
WL 5075245, at *2. Further, “even if the [Plaintiffs] would be
prejudiced by dismissal . . . they are largely responsible” for
causing such prejudice by missing the service deadline by their
own

mistake

or

oversight.

Hatton,

2019

WL

3219149,

at

*5.

Therefore, like the previously mentioned courts, this Court is not
persuaded to extend the 4(m) deadline, even though the Stapletons
would likely be prejudiced to the extent of being prevented from
refiling by the statute of limitations.
Fifth, while the Stapletons may have made a good faith effort
to perfect service after the Rule 4(m) service deadline had passed,
like Hatton, “it does not appear counsel made a good faith effort
to ensure that the service would be made within the ninety-day
period outlined in Rule 4(m). As a result, the fifth factor weighs
in favor of dismissal in this action.” Id. For the foregoing
reasons, each of the claims against PM Transport will be dismissed.
Since the Court is dismissing the Stapletons’ claims against PM
Transport due to the Stapletons’ failure to properly effectuate
service on PM Transport, the Court need not consider PM Transport’s

11

arguments regarding whether the Stapletons’ claims against PM
Transport are time-barred. Accordingly,
IT IS ORDERED as follows:
(1) Defendant PM Transport of Florida LLC’s (“PM Transport”)
Motion to Dismiss Second Amended Complaint [DE 95] is GRANTED;
(2) The Stapletons’ claims against Defendant PM Transport are
DISMISSED WITHOUT PREJUDICE; and
(3) This dismissal does not apply to the other Defendants in
this matter.
This 31st day of March, 2021.

12