Williams v. CompUSA
Filing
18
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 5/27/11. (mps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PATRICIA WILLIAMS,
Plaintiff,
v.
Civil Action No. ELH-10-2219
COMPUSA,
Defendant.
MEMORANDUM OPINION
The procedural history of this action is summarized in the Court’s Order of April 27,
2011 (ECF 12). In sum, Patricia Williams, plaintiff, filed an employment discrimination suit
against CompUSA on August 8, 2010. On December 7, 2010, plaintiff served CompUSA by
substituted service on the Maryland Department of Assessments and Taxation (ECF 3).
However, plaintiff later learned that, due to an apparent change in corporate ownership, the
wrong corporate entity had been served. Thereafter, on three occasions, the Court granted
plaintiff’s requests to extend the 120-day deadline for service of process, specified in Federal
Rule of Civil Procedure 4(m) and Local Rule 103.8.a.
Despite those extensions, plaintiff did not effect service upon defendant. 1 Then, on April
22, 2011, plaintiff’s counsel asked the Clerk (not the Court) for a “new summons” (ECF 11).
1
The Court accepts at face value plaintiff’s assertion that “the proper party was not
served.” [First] Motion for an Enlargement of Time at 1 (ECF 5). Apparently, plaintiff served
an entity registered with the State Department of Assessments and Taxation to do business in
Maryland as “CompUSA.” See Return of Service (ECF 3). But, no evidence, other than the
letter plaintiff’s counsel received from the general counsel of the reformulated CompUSA, has
been submitted to show that the proper defendant was not served (or who is, in fact, the proper
defendant).
That request was made one business day before the expiration of the third extension of the
deadline for service of process. Accordingly, on April 27, 2011, the Court ordered plaintiff to
show cause why the case should not be dismissed (ECF 12). On May 15, 2011, after obtaining
an extension, plaintiff filed a Response to the Court’s Order to Show Cause (“Response”) (ECF
15).
In the Response, plaintiff seeks an additional fifteen days in which to effectuate service
on defendant.
Response at 8.
Plaintiff’s counsel asserts three grounds for the requested
extension of the deadline for service of process. First, he notes that his attempts to serve
defendant have been frustrated by the change in “defendant’s organizational structure,” which
has made it difficult for counsel to “determine the proper party to serve.” Id. at 6. In this
connection, he cites the letter dated December 17, 2010, which counsel received from Curt S.
Rush, General Counsel for Systemax, Inc. (the corporate owner of CompUSA.com Inc. and
CompUSA Retail Inc., collectively the “new CompUSA”). There, Mr. Rush asserted that the
new CompUSA had been “erroneously served,” and he provided contact information for Brian
Zollinger, Acting General Counsel for “Old CompUSA Inc. fka CompUSA Inc” (ECF 5-3).
According to plaintiff’s counsel, “[s]hortly after petitioning the Court for the initial enlargement
of time,” he telephoned Zollinger, who informed him that, “as of the next day,” Zollinger’s
“position would be ‘vacant,’ because he had accepted an opportunity with another company.”
Id. 2 Thus, plaintiff’s counsel asserts that he was required to “‘search’ for the proper party.”
2
Plaintiff asserts that the telephone number provided for Zollinger was a number for a
mobile phone, and asks the Court to draw from that fact “a reasonable inference as to the
instability of the organization at that time.” Id. at 2.
Second, plaintiff’s attorney notes that he is a sole practitioner, and was “the only person
in his office during the time service could have been perfected.” Id. at 7. Further, he explains
that he is “consistently strapped for time, while balancing competing discovery schedules and the
deadlines associated with both pretrial and post trial dispositive motions filed by defendants.”
Id. Thus, he seeks to distinguish this case from those in which good cause for failure to serve
has not been found when someone else could have attended to service. See, e.g., Hoffman v.
Baltimore Police Dept., 379 F. Supp. 2d 778, 786 (D. Md. 2005).
Third, plaintiff’s lawyer posits that he recently discovered “an article on the internet that
identified the resident agent for the part of the company Plaintiff must most likely serve.”
Response at 7. According to plaintiff’s counsel, this discovery motivated him to request a new
summons “as late as April 20, 2011,” which he claims would have provided the “opportunity . . .
for service on or before April 25, 2011, pursuant to the Court’s mandate.” Id.
Rule 4(m) of the Federal Rules of Civil Procedure is relevant. It provides:
If 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.
Rule 4(m) was enacted in 1993 as a successor to the former Rule 4(j), which had required
that a case “shall be dismissed” if the defendant was not served within 120 days and the plaintiff
“cannot show good cause why such service was not made within that period.” Hammad v. Tate
Access Floors, Inc., 31 F. Supp. 2d 524, 526 (D. Md. 1999). After Rule 4(m) was enacted, the
Fourth Circuit decided Mendez v. Elliott, 45 F.3d 75 (4th Cir. 1995), in which it opined that the
new Rule 4(m) represented a “renumber[ing]” of former Rule 4(j), “without a change in
substance,” and stated: “Rule 4(m) requires that if the complaint is not served within 120 days
after it is filed, the complaint must be dismissed absent a showing of good cause.” Id. at 78. In
so stating, however, the Mendez Court did not discuss the Advisory Committee Notes to Rule
4(m), which explicitly state that the rule “‘authorizes the court to relieve a plaintiff of the
consequences of an application of this subdivision even if there is no good cause shown.’”
Hammad, 31 F. Supp. 2d at 527 (quoting Advisory Committee Notes; emphasis altered).
After Mendez, the Supreme Court decided Henderson v. United States, 517 U.S. 654
(1996). In dicta, the Supreme Court stated that, under Rule 4(m), “courts have been accorded
discretion to enlarge the 120-day period ‘even if there is no good cause shown.’” Id. at 662
(quoting Advisory Committee Notes to Rule 4(m)); see also id. 517 U.S. at 658 n.5 (“Rule 4(m)
. . . permits a district court to enlarge the time for service ‘even if there is no good cause
shown.’”). 3
Several decisions of this Court have observed that it is unclear, in this circuit, whether
Rule 4(m) vests a court with discretion to grant an extension of the 120-day deadline, in the
absence of good cause. See, e.g., Lehner v. CVS Pharmacy, Civ. No. RWT-08-1170, 2010 WL
610755, at *2 (D. Md. Feb. 17, 2010); Knott v. Atlantic Bingo Supply, Inc., Civ. No. JFM-051747, 2005 WL 3593743 (D. Md. Dec. 22, 2005); Hoffman, supra, 379 F. Supp. 2d at 786;
Melton v. Tyco Valves & Controls, Inc., 211 F.R.D. 288 (D. Md. 2002); Hammad, 31 F. Supp. 2d
at 526; United States v. Britt, 170 F.R.D. 8 (D. Md. 1996). Some regard Mendez as binding
circuit precedent, see, e.g., Britt, 170 F.R.D. at 9, while others have concluded that “Mendez is
3
To my knowledge, since Henderson, the Fourth Circuit has not revisited in a reported
opinion the issue of good cause in regard to service of process.
no longer good law.” Hammad, 31 F. Supp. 2d at 527; see also Melton, 211 F.RD. at 289-90.
Others have found it unnecessary to resolve definitively whether a finding of good cause is
mandatory before an extension can be granted. See, e.g., Lehner, 2010 WL 610755, at *2; Knott,
2005 WL 3593743, at *1 n.1. Nevertheless, the judges of this Court have consistently held that,
even if good cause is no longer an absolute requirement under Rule 4(m), “the Court would still
need to have some reasoned basis to exercise its discretion and excuse the untimely service: the
Court must give some import to the rule.” Hoffman, 379 F. Supp. 2d at 786; see also Lehner,
2010 WL 610755, at *3 (where plaintiff “made no effort to serve Defendant within the time
allotted under Fed. R. Civ. P. 4(m),” even assuming that the Court had discretion to excuse
untimely filing, the Court would “not make a mockery of the time requirements set forth in the
Federal Rules of Civil Procedure”).4
To be sure, a change in corporate ownership may create difficulties in effecting service.
Nevertheless, other than an internet search that apparently occurred a few days before the
expiration of an extended deadline for service, plaintiff’s counsel has made no showing since
January 2011 of any efforts to effectuate service. At that time (January 2011), he telephoned Mr.
Zollinger. Response at 7.
4
To the extent that “good cause” applies, it requires a showing that the plaintiff “made
reasonable and diligent efforts to effect service prior to the 120-day limit, which may include a
showing that plaintiff's attempts at service were unsuccessful due to a putative defendant’s
evasion of process.” Quann v. White-Edgewater, 112 F.R.D. 649, 659 (D. Md. 1986); accord
Knott, 2005 WL 3593743, at *1. Where a plaintiff has failed to serve a defendant, this Court has
found good cause lacking in a variety of circumstances, some quite compelling. See, e.g.,
Braithwaite v. Johns Hopkins Hosp., 160 F.R.D. 75 (D. Md. 2005) (holding that murder of pro se
plaintiff’s daughter did not constitute good cause to excuse failure to serve defendant within 120
days); Knott, 2005 WL 3593743, at *1-2 (holding that serious illness suffered by plaintiff’s
counsel, which confined him to “bed rest,” did not constitute good cause for failure to serve
defendant within 120 days).
The fact that plaintiff’s counsel is a sole practitioner with many demands on his schedule
does not excuse disregard of deadlines imposed by the Federal Rules of Civil Procedure. Rather,
counsel has a professional obligation to see that his “workload [is] controlled so that each matter
can be handled competently.” Rule 1.3, Comment [2], of the Md. Rules of Prof’l Conduct
(“MRPC”); see also Local Rules 703 & 704 (making the MRPC applicable to lawyers practicing
in this Court). Additionally, although good cause to waive the 120-day requirement of Rule
4(m) does not arise because of the “possibility that Plaintiff’s claims will be time-barred if
dismissed without prejudice,” Knott, 2005 WL 3593743, at *2, that possibility requires the Court
to act prudently before dismissing a case for failure to serve within the time prescribed by the
rule. 5
Significantly, in the majority of the cases I have reviewed (Lehner, Knott, Hoffman,
Melton, and Hammad), this Court has resolved the question of timely compliance with Rule 4(m)
in the context of considering a motion by a defendant, served more than 120 days after the filing
of the complaint, to dismiss for insufficient service of process under Federal Rule of Civil
Procedure 12(b)(5). In those cases, the Court has had the benefit of full adversarial briefing in its
consideration of the issue.
5
In this case, plaintiff alleges employment discrimination on the basis of race, gender,
and age, with respect to her discharge from employment in June 2007. According to her
Complaint (ECF 1), as required by the applicable statutes (Title VII of the Civil Rights Act of
1964 and the Age Discrimination in Employment Act), she timely filed a charge with the Equal
Employment Opportunity Commission (“EEOC”), and received a right to sue letter from the
EEOC on May 13, 2010, which authorized her to initiate suit within 90 days of receipt of the
letter. Complaint ¶¶ 8-9. She filed her Complaint on August 11, 2010, the ninetieth day after
receipt of the letter. Although I need not, and do not, definitively resolve whether the Complaint
would be time-barred if dismissed and later re-filed, it appears at least likely that suit would be
barred by limitations.
Accordingly, the Court will grant plaintiff one further, brief extension of time to effect
service. However, the extension is granted without a finding that plaintiff has shown good cause,
or any “other reasoned basis” for the extension. Hoffman, 379 F. Supp. 2d at 786. Further, the
extension is granted without prejudice to defendant’s right, within 21 days after service of the
summons and Complaint, to move to vacate the extension as improvidently granted, and to seek
dismissal of the Complaint for insufficient service of process under Federal Rule of Civil
Procedure 12(b)(5). In that event, the Court will again consider, after full briefing, the propriety
of the extensions.
Therefore, the Court will direct the Clerk to reissue a summons, as requested by plaintiff,
and will grant an extension of fifteen days to effect service, as requested by plaintiff,
commencing from the date that the summons is issued. A separate Order implementing the
foregoing ruling follows.
Dated: May 27, 2011
/s/
Ellen Lipton Hollander
United States District Judge
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