Belhasen v. Hollon

Filing 14

MEMORANDUM OPINION & ORDER: (1) Defendant Alva A. Hollon, Jr.'s Motion to Dismiss (Doc. # 10 ) is GRANTED; (2) Plaintiff Ronald K. Belhasen's Complaint (Doc. # 1 ) is DISMISSED WITHOUT PREJUDICE; and (3) A Judgment in favor of Defendant Alva A. Hollon, Jr. will be entered contemporaneously herewith. Motions terminated: 10 MOTION for Summary Judgment MOTION to Dismiss for failure to state a claim by Alva A. Hollon, Jr filed by Alva A. Hollon, Jr. Case Terminated. Signed by Judge David L. Bunning on 5/23/2018.(RBB)cc: COR,

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 17-279-DLB
RONALD K. BELHASEN

V.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

ALVA A. HOLLON, JR.
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DEFENDANT
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This matter is before the Court on Defendant’s Motion to Dismiss, seeking
dismissal of Plaintiff’s action for failure to timely serve Defendant under Federal Rule of
Civil Procedure 4(m). (Doc. # 10). For the reasons below, this action is dismissed.
I.

Factual and Procedural Background
On October 11, 2017, Plaintiff filed this action alleging that he had been maliciously

prosecuted by Defendant. (Doc. # 1). According to Plaintiff, he was a physician and
orthopedic surgeon in southern Kentucky when Defendant filed a medical-malpractice
complaint against him in 2008. Id. at 1-2. Plaintiff asserts that Defendant “instituted and
continued” the case against him “without probable cause,” even after “it became clear
that no probable cause existed,” until the court granted summary judgment in Plaintiff’s
favor and dismissed the matter in 2016. Id. at 2. Throughout, Plaintiff alleges that
Defendant “engaged in a pattern of delay designed to mask the fact that he could not
locate an expert witness” willing to testify that Plaintiff’s medical decisions and actions fell
below the standard of care. Id. Plaintiff now seeks compensatory and punitive damages.

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Id. at 8.
On November 20, 2017, the Kentucky Secretary of State filed a notice indicating
that it was not able to process the summons issued to Defendant because Plaintiff had
not included the filing fee. (Doc. # 5). Ninety days after he had first filed the Complaint,
on January 9, 2018, Plaintiff notified the Court that he had requested a second summons,
for the purpose of having it served by the Kentucky Secretary of State. (Doc. # 6). The
Kentucky Secretary of State filed a notice that same day indicating that it had reissued a
service packet for summons to Plaintiff. (Doc. # 7).
On March 22, 2018, more than seventy days later—with still no indication that
Plaintiff had served Defendant—this Court issued an Order requiring Plaintiff to show
cause within ten days as to why he had not yet served Defendant, or face dismissal under
Federal Rule of Civil Procedure 4(m). (Doc. # 8). On March 30, 2018, 170 after the case
was initially filed, Plaintiff responded to the Court’s Show Cause Order. (Doc. # 9).
Plaintiff explained that the reason the service of summons had taken so long was that he
was “under the mistaken impression that all fees had been paid electronically.” Id.
Plaintiff also indicated to the Court that the summons, issued on January 9, 2018, had
been “hand-delivered to the Secretary of State … together with appropriate payment” that
same day. Id.
Shortly thereafter, Defendant filed a Motion to Dismiss, or in the alternative, Motion
for Summary Judgment.

(Doc. # 10).

Defendant argues that the case should be

dismissed for insufficient service of process under Rule 12(b)(5), lack of personal
jurisdiction under Rule 12(b)(2), and for failure to state a claim under Rule 12(b)(6). Id.
In the alternative, Defendant argues that summary judgment in Defendant’s favor under

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Rule 56 is appropriate. Id. Plaintiff having responded (Doc. # 12), and Defendant having
replied (Doc. # 13), this motion is ripe for the Court’s review.
II.

Analysis
The Federal Rules of Civil Procedure require a defendant be served “within ninety

(90) after the complaint is filed.” Fed. R. Civ. P. 4(m). If not:
[T]he 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.
Id.
Following a determination that a defendant has not been timely served, the Rule
contains two commands. First, the Court must either order service be made within a
certain time or dismiss the action. Second, upon a plaintiff’s showing of good cause for
his failure, the Court is required to extend the time for service. Logically, an inquiry into
the second order must be made first; it makes no sense to extend the time for service
upon a showing of good cause if the court has already chosen to dismiss the action, or to
determine whether good cause is shown if the court has already used its discretion to
extend the time for service. See, e.g., Bradford v. Bracken Cty., 767 F. Supp. 2d 740,
753 (E.D. Ky. 2011).
Plaintiff argues that he has shown good cause for his failure to timely serve
Defendant because his counsel inadvertently failed to properly pay the Kentucky
Secretary of State for service, as it was counsel’s “impression that all fees had been paid
electronically.” (Doc. # 9). However, Plaintiff all-but concedes that he has not shown
good cause, arguing that if good cause does not exist, the Court still has discretion to

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dismiss the case or extend the time for service. (Doc. # 12 at 8). In support of his
argument to extend service, Plaintiff argues that “other substantial factors” “weigh in favor
of not dismissing the case.” Id. Plaintiff provides two “other substantial factors.” Id. at 9.
First, Plaintiff argues that the total delay in service is miniscule compared to the delays in
the prior state-court medical-malpractice action between Plaintiff and Defendant’s former
client. Id. Second, Plaintiff argues that Defendant has not suffered any prejudice from
the delay of service, and in fact Defendant received service only “a mere four days after
filing” his Motion to Dismiss. Id.
Although Rule 4(m) does not define good cause, the Sixth Circuit has required “at
least excusable neglect.” Stewart v. Tenn. Valley Auth., 238 F.3d 424, at *1 (6th Cir.
2000) (table). This standard “has consistently been held to be strict, and can be met only
in extraordinary circumstances.” Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir.
2005) (quoting Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989)). To assess a
claim of excusable neglect, the Court considers the neglect of both the party and the
party’s counsel. McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d
586, 595 (6th Cir. 2002) (citing Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship,
507 U.S. 380, 397 (1993)). In this manner, “clients [are] held accountable for the acts
and omissions of their attorneys.” Pioneer Inv. Servs., 507 U.S. at 396.
The Court must consider and balance five equitable factors in determining
excusable neglect: “(1) the danger of prejudice to the [Defendant]; (2) the length of delay
and its potential impact on judicial proceedings; (3) the reason for the delay; (4) whether
the delay was within the reasonable control of [Plaintiff or Plaintiff’s counsel]; and (5)
whether the late-filing party acted in good faith.” Nafziger v. McDermott Int’l, Inc., 467

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F.3d 514, 522 (6th Cir. 2006) (citing Pioneer Inv. Servs., 507 U.S. at 395).
A review of the timeline, in consideration of these factors, shows that Plaintiff has
failed to show good cause. Plaintiff was notified of his failure to pay the Secretary of State
on November 20, 2017. (Doc. # 5). Even if the time to serve Defendant ran from that
date—which it did not—Plaintiff’s ninety days for service would have run on February 18,
2018, more than a month before this Court issued its Show Cause Order. (Doc. # 8). It
took Plaintiff’s counsel almost two months to request a second summons, and even then
Plaintiff’s counsel did not take any action to get the summons served until after this Court
had issued its Show Cause Order. All told, 180 days elapsed between the filing of this
action and service upon the single Defendant. (Docs. # 1 and 11). Plaintiff has not shown
good cause for his delay. See, e.g., DeLong v. Arms, 251 F.R.D. 253, 255 (E.D. Ky.
2008) (holding that “mere oversight” was not sufficient to constitute good cause).
Turning to the factors in Nafziger, although perhaps this delay did not prejudice
Defendant, Plaintiff has provided no good reason or explanation of good faith for the
delay, and the delay was entirely within the reasonable control of Plaintiff’s counsel, who
had only to deliver payment and the summons to the Kentucky Secretary of State. In fact,
upon the Court’s Show Cause Order, it took Plaintiff’s counsel only eight days to
effectuate service properly. (Doc. # 9). Furthermore, the substantial delay between the
Kentucky Secretary of State’s initial notice on November 20, 2017, and Plaintiff’s
counsel’s request for a second summons, on January 9, 2018, in addition to the revelation
that Plaintiff’s counsel did not even seek to serve the summons until after this Court had
issued a Show Cause Order, suggest that the potential impact on judicial proceedings
should this action continue will be substantial. Plaintiff has not demonstrated excusable

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neglect, no good cause for the delay has been shown, and therefore, this Court is not
required to extend the time for service under Rule 4(m).
Despite the lack of good cause, the Court has discretion to extend the time for
service. Fed. R. Civ. P. 4(m). However, an attorney’s “inadvertent failure” or “halfhearted
efforts” to effect service are not good cause, Friedman v. Estate of Presser, 929 F.2d
1151, 1157 (6th Cir. 1991), and Plaintiff has provided the Court no other reasons
explaining why he blatantly disregarded Rule 4(m), and why this Court should use its
discretion to extend the time for service. Therefore, pursuant to Rule 4(m), this action is
dismissed.1
III.

CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Defendant Alva A. Hollon, Jr.’s Motion to Dismiss (Doc. # 10) is GRANTED;

(2)

Plaintiff Ronald K. Belhasen’s Complaint (Doc. # 1) is DISMISSED

WITHOUT PREJUDICE; and
(3)

A Judgment in favor of Defendant Alva A. Hollon, Jr. will be entered

contemporaneously herewith.
This 23rd day of May, 2018.

K:\DATA\Opinions\London\17-279 Belhasen v. Hollon MOO re MTD 4m.docx

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The Court notes that this action is dismissed under Rule 4(m) only, and that this Memorandum
Opinion and Order does not address the other grounds for dismissal raised by Defendant.
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